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Cixto Cruiz Murillo v. the Fifth Appellate Court

July 20, 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 CONSTRUING DOCUMENT AS A FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS (DOC. 12 ORDER DISREGARDING PETITIONER'S MOTION TO PROCEED IN FORMA PAUPERIS (DOC. 13)

ORDER DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS WITHOUT LEAVE TO AMEND (DOCS. 12, 14)

ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND DIRECTING THE CLERK TO CLOSE THE CASE

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on May 7, 2012 (doc. 10). Pending before the Court are two pleadings filed by Petitioner, one of which is set forth on a prisoner civil rights complaint form (doc. 12, filed on May 14, 2012), and the other entitled as a first amended petition for writ of habeas corpus on a habeas corpus petition form (doc. 14, filed on May 17, 2012).

I. Background

On April 18, 2012, 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.) It was unclear from this document whether Petitioner intended to file for relief in this Court, and if so, what type of relief Petitioner was seeking. Further, it was unclear whether Petitioner intended to allege claims concerning his conditions of confinement, or whether Petitioner was complaining of the legality or duration of his confinement. Petitioner complained of the release of false information or slander by a newspaper and conduct in excess of guidelines by parole officers or officials; he adverted to trying to commit suicide while waiting for a parole board hearing beyond the time guidelines; and he raised claims concerning error in what appeared to have been trial court proceedings, such as errors in the exclusion of evidence and sentencing, and the ineffective assistance of counsel. However, Petitioner's allegations were general, vague, and unclear.

By order dated May 2, 2012, the Court informed Petitioner of these problems and directed Petitioner either to 1) voluntarily dismiss the petition, or 2) file either a petition for writ of habeas corpus or a civil rights complaint form in the instant action. (Doc. 7.)

In response, Petitioner filed the two pleadings that are the subject of this order.

II. 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).

III. Petitioner's Claims Set Forth in a Civil Rights

Complaint Form

In the document filed on a civil right complaint form (doc. 12), Petitioner names Judge Ronald Coulard and unnamed "STATE OFFICIALS OF VISALIA" (id. at 1) as defendants. Petitioner complains that unspecified guidelines were broken by the Visalia Parole Office and the Visalia Times Delta, and that the archives will reflect the points that he seeks to correct as well as exploitation and prejudice because Petitioner tried to commit suicide at a detention facility. (Id. at 2.) Petitioner stated that the following is the relief he seeks from the Court:

I AM APPEALING-FOR THE MID TERM OF MY-SENTENCE AND TO LEAVE THE COUNTY WITH ANKLE MONITOR. TO ALL 14TH, AMENDMENTS. (Id.) Petitioner appears to refer to a disproportionate sentence of forty-eight years and to the parole department's and news media's making Petitioner guilty before the court process started because of seven incorrect accounts. (Id. at 8.)

However, Petitioner also notes that he sent this Court copies of the actions of which he complains. Copies of documentation attached to the complaint form reveal that Petitioner is referring to correspondence from the 2012 Board of Parole Hearings (BPH) in which the BPH stated that because Petitioner was currently serving time for his commitment offense and had not been released on parole, Petitioner was not within the jurisdiction of the BPH; further, the BPH did not have an appeals unit, so Petitioner had to take his claim directly to the courts. (Id. at 5.)

Petitioner also attached a form concerning parole revocation processes (notice of rights, request for witnesses, attorney consultation, probable cause hearing, and final revocation hearing) in which he marked some rules that he alleged that state officials had violated and that gave rise to a violation of Petitioner's right to due process. (Id. at 8.) Petitioner also attached a partially obscured form showing that ...


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