Murillo v. The Fifth Appelate Court

Filing 7

ORDER Directing the Clerk to Send Petititioner a Habeas Petition, a Civil Rights Complaint, and an Application to Proceed In Forma Pauperis; ORDER Requiring Petitioner to File Within Thirty Days (1) a Notice of Voluntary Dismissal, OR (2) a Petition OR, Alternatively a Complaint, and to Pay the Filing Fee OR File an In Forma Pauperis Application, signed by Magistrate Judge Sheila K. Oberto on 5/2/2012. Thirty Day Deadline. (Attachments: # 1 Habeas Petition form, # 2 Complaint form, # 3 IFP application) (Marrujo, C)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10
CIXTO CRUIZ MURILLO,
11
Petitioner,
12
13

v.

14

THE FIFTH APPELLATE COURT,

15

Respondent.

16

)
)
)
)
)
)
)
)
)
)
)
)

17

1:12-cv—00656-SKO-HC
ORDER DIRECTING THE CLERK TO SEND
PETITIONER A HABEAS PETITION, A
CIVIL RIGHTS COMPLAINT, AND AN
APPLICATION TO PROCEED IN FORMA
PAUPERIS
ORDER REQUIRING PETITIONER TO
FILE WITHIN THIRTY DAYS (1) A
NOTICE OF VOLUNTARY DISMISSAL, OR
(2) A PETITION OR, ALTERNATIVELY
A COMPLAINT, AND TO PAY THE
FILING FEE OR FILE AN IN FORMA
PAUPERIS APPLICATION

18
19

Petitioner, an inmate of the California State Prison at

20

Corcoran, California, filed a document entitled “PETITION FOR

21

WRIT OF CERTIORARI,” captioned for the “SUPREME COURT OF THE

22

UNITED STATES EASTEREN (sic) DISTRICT.”

23

is proceeding pro se, and the Court has authorized him to proceed

24

in forma pauperis.

25

Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local

26

Rules 302 and 303.

(Doc. 1, 1.)

Petitioner

The matter has been referred to the

27

I.

28

Rule 4 of the Rules Governing § 2254 Cases in the United

Screening the Petition

1

1

States District Courts (Habeas Rules) requires the Court to make

2

a preliminary review of each petition for writ of habeas corpus.

3

The Court must summarily dismiss a petition "[i]f it plainly

4

appears from the petition and any attached exhibits that the

5

petitioner is not entitled to relief in the district court....”

6

Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.

7

1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.

8

1990).

9

grounds of relief available to the Petitioner; 2) state the facts

Habeas Rule 2(c) requires that a petition 1) specify all

10

supporting each ground; and 3) state the relief requested.

11

Notice pleading is not sufficient; the petition must state facts

12

that point to a real possibility of constitutional error.

13

4, Advisory Committee Notes, 1976 Adoption; O’Bremski v. Maass,

14

915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75

15

n.7 (1977)).

16

conclusory, or palpably incredible are subject to summary

17

dismissal.

18

Rule

Allegations in a petition that are vague,

Hendricks v. Vasquez, 908 F.2d at 491.

The Court may dismiss a petition for writ of habeas corpus

19

either on its own motion under Habeas Rule 4, pursuant to the

20

respondent's motion to dismiss, or after an answer to the

21

petition has been filed.

22

8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43

23

(9th Cir. 2001).

24

dismissed without leave to amend unless it appears that no

25

tenable claim for relief can be pleaded were such leave granted.

26

Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

27
28

Advisory Committee Notes to Habeas Rule

A petition for habeas corpus should not be

Here, the petition is uncertain in several material
respects.

Because of these uncertainties, the Court is unable to
2

1

screen the petition or otherwise to proceed with the action.

2

It is unclear whether Petitioner intended to file for relief

3

in this Court, and if so, what type of relief Petitioner would be

4

seeking from this Court.

5

intended to file his petition in is uncertain.

6

“SUPREME COURT OF THE UNITED STATES EASTEREN DISTRICT,” (pet. 1)

7

appears to refer to the Supreme Court and not to this Court,

8

which is a United States District Court.

9

reference to the Eastern District may indicate that Petitioner is

10
11

The designation of the court Petitioner
The title

However, the apparent

in fact seeking to file his petition in this court.
Further, Petitioner is petitioning for a writ of certiorari,

12

relief which a state prisoner may seek from the United States

13

Supreme Court.

14

jurisdiction of the Court pursuant to 28 U.S.C. sec. 1254(1),

15

which pertains to review by the United States Supreme Court.

16

(Id. at 7.)

17

(Pet. 6, 11.)

Petitioner invokes the

In addition, the Court takes judicial notice1 of its docket

18

in Cixto Cruz Murillo, case number 1:12-cv-00531-GSA-HC, and of

19

the petition filed therein (doc. 1), in which Petitioner has

20

filed a petition for writ of habeas corpus relating to his

21

criminal conviction in case number VHC248140 in the Tulare County

22

Superior Court in 2000.

23

Court case number is the same number that appears in the petition

24

for certiorari that is before the Court in the present case.

25

(Doc. 1 at 1, 12.)

(Id. at 1.)

This Tulare County Superior

26
27
28

1

The Court may take judicial notice of court records. Fed. R. Evid.
201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993);
Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n.1 (N.D. Cal. 1978),
aff’d, 645 F.2d 699 (9th Cir. 1981).

3

1

It therefore appears that Petitioner has already filed a

2

petition for writ of habeas corpus in this Court concerning the

3

same judgment of conviction he is challenging in the earlier

4

filed habeas proceeding in this Court.

5

already filed a habeas petition in this Court, and because

6

successive or repeated petitions for writs of habeas corpus are

7

subject to statutory limitations, it seems unlikely that

8

Petitioner’s petition in the present proceeding is intended to be

9

a second petition for writ of habeas corpus.

10

Because Petitioner has

In the petition before the Court, Petitioner complains of

11

the release of false information or slander by the Visalia Times

12

Delta and conduct in excess of guidelines by parole officers or

13

unspecified state officials, and he adverts to trying to commit

14

suicide while waiting for a parole board hearing past the time

15

guidelines.

16

actions by unofficial bodies or to conditions of confinement.

17

also raises claims concerning errors in what appear to have been

18

trial court proceedings, such as errors in the exclusion of

19

evidence and sentencing, and the ineffective assistance of

20

counsel.

21

general, and many are vague or unclear.

22

(Pet. 10-11.)

(Id. at 8-10.)

These matters appear to relate to
He

However, Petitioner’s allegations are

A habeas petition in federal court is the proper mechanism

23

to challenge the fact or duration of confinement.

24

§ 2254(a); Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991)

25

(citing Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S.Ct. 1827,

26

1833 (1973)).

27

confinement must be raised in a civil rights action.

28

F.2d at 574 (citing Preiser, 411 U.S. at 485, 93 S.Ct. at 1833).

28 U.S.C.

In contrast, challenges to conditions of

4

Badea, 931

1

In sum, it is unclear whether the present petition is

2

intended to be filed in this Court.

3

file his petition in the United States Supreme Court and not

4

here, Petitioner should file a notice of voluntary dismissal of

5

the instant action.

6

to file the petition in this Court, it is unclear whether

7

Petitioner is intending to file a second habeas petition in this

8

action, or, in the alternative, a civil rights complaint

9

concerning conditions of confinement.

10

If Petitioner intended to

If, on the other hand, Petitioner intended

The Court will direct the Clerk's Office to provide

11

Petitioner with a form habeas petition, a civil rights complaint

12

form, and an application to proceed in forma pauperis.

13

Petitioner will have thirty (30) days in which to either: 1)

14

notify this Court that he is voluntarily dismissing this action;

15

2) file a petition for writ of habeas corpus bearing the case

16

number of this case, or 3) file a complaint bearing the case

17

number of this proceeding, along with the filing fee or an in

18

forma pauperis application, within thirty (30) days.

19

Further, although this Court has authorized Petitioner to

20

proceed in forma pauperis in this action with respect to a habeas

21

petition, it is anticipated that Petitioner may file a civil

22

rights complaint in response to this order.

23

action, the plaintiff must either pay the filing fee in full or

24

file an application to proceed in forma pauperis.

25

either the fee or an application to proceed in forma pauperis

26

with respect to a civil rights action must be submitted along

27

with a complaint.

28

voluntary dismissal if he no longer wishes to pursue this action.

In a civil rights

Therefore,

Alternatively, Petitioner may file a notice of

5

1

Fed. R. Civ. P. 41(a)(1).

2

Accordingly, it is HEREBY ORDERED that:

3

1.

The Clerk's Office shall SEND Petitioner a form habeas

4

petition for a state prisoner, a civil rights complaint form for

5

an incarcerated person, and an application to proceed in forma

6

pauperis; and

7

2.

Within thirty (30) days from the date of service of this

8

order, Petitioner shall: 1) FILE a notice of voluntary dismissal,

9

or 2) FILE either a petition, or a complaint accompanied by

10

either the filing fee in full or an application to proceed in

11

forma pauperis; and

12

3.

Petitioner is INFORMED that the failure to comply with

13

this order will result in dismissal of this action, without

14

prejudice.

15
16

IT IS SO ORDERED.

17

Dated:
ie14hj

May 2, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24
25
26
27
28
6