Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Cixto Cruiz Murillo v. the Fifth Appellate Court

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 2, 2012

CIXTO CRUIZ MURILLO,
PETITIONER,
v.
THE FIFTH APPELLATE COURT, RESPONDENT.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

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

Petitioner, an inmate of the California State Prison at Corcoran, California, filed a document entitled "PETITION FOR WRIT OF CERTIORARI," captioned for the "SUPREME COURT OF THE UNITED STATES EASTEREN (sic) DISTRICT." (Doc. 1, 1.) Petitioner is proceeding pro se, and the Court has authorized him to proceed in forma pauperis. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303.

I. Screening the Petition

Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491.

The Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

Here, the petition is uncertain in several material respects. Because of these uncertainties, the Court is unable to screen the petition or otherwise to proceed with the action.

It is unclear whether Petitioner intended to file for relief in this Court, and if so, what type of relief Petitioner would be seeking from this Court. The designation of the court Petitioner intended to file his petition in is uncertain. The title "SUPREME COURT OF THE UNITED STATES EASTEREN DISTRICT," (pet. 1) appears to refer to the Supreme Court and not to this Court, which is a United States District Court. However, the apparent reference to the Eastern District may indicate that Petitioner is in fact seeking to file his petition in this court.

Further, Petitioner is petitioning for a writ of certiorari, relief which a state prisoner may seek from the United States Supreme Court. (Pet. 6, 11.) Petitioner invokes the jurisdiction of the Court pursuant to 28 U.S.C. sec. 1254(1), which pertains to review by the United States Supreme Court. (Id. at 7.)

In addition, the Court takes judicial notice *fn1 of its docket in Cixto Cruz Murillo, case number 1:12-cv-00531-GSA-HC, and of the petition filed therein (doc. 1), in which Petitioner has filed a petition for writ of habeas corpus relating to his criminal conviction in case number VHC248140 in the Tulare County Superior Court in 2000. (Id. at 1.) This Tulare County Superior Court case number is the same number that appears in the petition for certiorari that is before the Court in the present case. (Doc. 1 at 1, 12.)

It therefore appears that Petitioner has already filed a petition for writ of habeas corpus in this Court concerning the same judgment of conviction he is challenging in the earlier filed habeas proceeding in this Court. Because Petitioner has already filed a habeas petition in this Court, and because successive or repeated petitions for writs of habeas corpus are subject to statutory limitations, it seems unlikely that Petitioner's petition in the present proceeding is intended to be a second petition for writ of habeas corpus.

In the petition before the Court, Petitioner complains of the release of false information or slander by the Visalia Times Delta and conduct in excess of guidelines by parole officers or unspecified state officials, and he adverts to trying to commit suicide while waiting for a parole board hearing past the time guidelines. (Pet. 10-11.) These matters appear to relate to actions by unofficial bodies or to conditions of confinement. He also raises claims concerning errors in what appear to have been trial court proceedings, such as errors in the exclusion of evidence and sentencing, and the ineffective assistance of counsel. (Id. at 8-10.) However, Petitioner's allegations are general, and many are vague or unclear.

A habeas petition in federal court is the proper mechanism to challenge the fact or duration of confinement. 28 U.S.C. § 2254(a); Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (citing Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S.Ct. 1827, 1833 (1973)). In contrast, challenges to conditions of confinement must be raised in a civil rights action. Badea, 931 F.2d at 574 (citing Preiser, 411 U.S. at 485, 93 S.Ct. at 1833).

In sum, it is unclear whether the present petition is intended to be filed in this Court. If Petitioner intended to file his petition in the United States Supreme Court and not here, Petitioner should file a notice of voluntary dismissal of the instant action. If, on the other hand, Petitioner intended to file the petition in this Court, it is unclear whether Petitioner is intending to file a second habeas petition in this action, or, in the alternative, a civil rights complaint concerning conditions of confinement.

The Court will direct the Clerk's Office to provide Petitioner with a form habeas petition, a civil rights complaint form, and an application to proceed in forma pauperis. Petitioner will have thirty (30) days in which to either: 1) notify this Court that he is voluntarily dismissing this action; 2) file a petition for writ of habeas corpus bearing the case number of this case, or 3) file a complaint bearing the case number of this proceeding, along with the filing fee or an in forma pauperis application, within thirty (30) days.

Further, although this Court has authorized Petitioner to proceed in forma pauperis in this action with respect to a habeas petition, it is anticipated that Petitioner may file a civil rights complaint in response to this order. In a civil rights action, the plaintiff must either pay the filing fee in full or file an application to proceed in forma pauperis. Therefore, either the fee or an application to proceed in forma pauperis with respect to a civil rights action must be submitted along with a complaint. Alternatively, Petitioner may file a notice of voluntary dismissal if he no longer wishes to pursue this action.

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

Accordingly, it is HEREBY ORDERED that:

1. The Clerk's Office shall SEND Petitioner a form habeas petition for a state prisoner, a civil rights complaint form for an incarcerated person, and an application to proceed in forma pauperis; and

2. Within thirty (30) days from the date of service of this order, Petitioner shall: 1) FILE a notice of voluntary dismissal, or 2) FILE either a petition, or a complaint accompanied by either the filing fee in full or an application to proceed in forma pauperis; and

3. Petitioner is INFORMED that the failure to comply with this order will result in dismissal of this action, without prejudice.

IT IS SO ORDERED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.