                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 21 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-15875

                Plaintiff-Appellee,             D.C. Nos. 1:18-cv-00101-HG
                                                          1:08-cr-00059-HG-3
 v.

HOLOAKI SIONE MATEIALONA,                       MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Hawaii
                   Helen W. Gillmor, District Judge, Presiding

                          Submitted February 19, 2019**

Before:      FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.

      Federal prisoner Holoaki Sione Mateialona appeals pro se from the district

court’s order finding that Mateialona withdrew his post-judgment petition and

closing his case. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Mateialona contends that the district court erred by construing his petition


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, Mateialona’s
request for oral argument is denied.
for judicial notice of adjudicative facts as a 28 U.S.C. § 2255 motion and closing

his case, without conducting a hearing under Federal Rule of Evidence 201. The

court did not err. Mateialona’s petition, although styled as a request for judicial

notice, challenged the authority of the prosecutors in his criminal case to prosecute

him. This claim sounds in habeas. See El-Shaddai v. Zamora, 833 F.3d 1036,

1046 (9th Cir. 2016). The district court thus properly informed Mateialona that it

intended to construe this petition as a section 2255 motion, gave Mateialona the

proper advisements, and provided him an opportunity to respond. See Castro v.

United States, 540 U.S. 375, 383 (2003). When Mateialona responded that he did

not wish to challenge the legality of his conviction or sentence, the court properly

concluded that the petition had been withdrawn. See El-Shaddai, 833 F.3d at 1046

(“When a prisoner challenges the fact or duration of his confinement, the sole

federal remedy is a writ of habeas corpus.”); United States v. Valdez-Pacheco, 237

F.3d 1077, 1079-80 (9th Cir. 2001) (where petitioner’s claims are cognizable under

section 2255, he may not circumvent the limitations imposed by that statute by

seeking another form of relief). The petition having been withdrawn, Mateialona

was not entitled to an evidentiary hearing.

      AFFIRMED.




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