# (HC) Murillo v. CDCR Administration > District Court, E.D. California · June 10, 2025 URL: https://www.frixlaw.com/law-library/cases/11069121 ## Case - **Court:** District Court, E.D. California - **Decided:** June 10, 2025 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11069121 ## How later opinions describe it (automated extraction) - describing settlement agreement that 9 required California to comply with a remedial plan “to ensure that California prisoners with 10 developmental disabilities were protected from serious injury and discrimination on the basis of 11 their disability” ## Opinion text 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CIXTO CRUZ MURILLO, Case No. 1:25-cv-00495-EPG-HC 12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF 13 v. HABEAS CORPUS 14 CDCR ADMINISTRATION, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT COURT JUDGE 15 Respondent. 16 17 Petitioner Cixto Cruz Murillo is a state prisoner proceeding pro se with a petition for writ 18 of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the undersigned 19 recommends that the petition be dismissed. 20 I. 21 DISCUSSION 22 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 23 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 24 to file a response, if it “plainly appears from the petition and any attached exhibits that the 25 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 26 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 27 /// /// 1 A. Unauthorized Successive Petition 2 A federal court must dismiss a second or successive petition that raises the same grounds 3 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive 4 petition raising a new ground unless the petitioner can show that (1) the claim rests on a new, 5 retroactive, constitutional right, or (2) the factual basis of the claim was not previously 6 discoverable through due diligence, and these new facts establish by clear and convincing 7 evidence that but for the constitutional error, no reasonable factfinder would have found the 8 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)–(B). However, it is not the 9 district court that decides whether a second or successive petition meets these requirements. 10 Section 2244(b)(3)(A) provides: “Before a second or successive application permitted by 11 this section is filed in the district court, the applicant shall move in the appropriate court of 12 appeals for an order authorizing the district court to consider the application.” In other words, a 13 petitioner must obtain leave from the Ninth Circuit before he can file a second or successive 14 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656–57 (1996). This Court must 15 dismiss any second or successive petition unless the Court of Appeals has given a petitioner 16 leave to file the petition because a district court lacks subject-matter jurisdiction over a second or 17 successive petition. Burton v. Stewart, 549 U.S. 147, 157 (2007). 18 To the extent Petitioner challenges his 2000 Tulare County Superior Court convictions, 19 (ECF No. 1 at 2, 31), the Court notes that Petitioner previously sought federal habeas relief in this 20 Court with respect to the same convictions, and the petition was dismissed without leave to 21 amend because “Petitioner ha[d] not alleged specific facts that point to a real possibility of 22 constitutional error affecting the fact or duration of his confinement” and “[t]here [wa]s no basis 23 for a conclusion that Petitioner could state tenable claims if leave to amend were granted.” Order 24 at 8, Murillo v. The Fifth Appellate Court, No. 1:12-cv-00656-SKO-HC (E.D. Cal. July 23, 25 2012), ECF No. 15.2 See also Murillo v. Coullard, No. 1:14-cv-02035-SAB (dismissed as 26 successive); Murillo v. Cruz, No. 1:23-cv-00136-JLT-SKO (same). The Court finds that the 27 1 Page numbers refer to ECF page numbers stamped at the top of the page. 2 The Court may take judicial notice of its own records in other cases. United States v. Wilson, 631 F.2d 1 instant petition is “second or successive” under 28 U.S.C. § 2244(b). See McNabb v. Yates, 576 2 F.3d 1028, 1029 (9th Cir. 2009) (“A habeas petition is second or successive only if it raises 3 claims that were or could have been adjudicated on the merits. A disposition is ‘on the merits’ if 4 the district court either considers and rejects the claims or determines that the underlying claim 5 will not be considered by a federal court.”). As Petitioner has already filed a petition for writ of 6 habeas corpus regarding his 2000 Tulare County convictions, he cannot file another petition in 7 this Court regarding the same convictions without first obtaining permission from the United 8 States Court of Appeals for the Ninth Circuit. Here, Petitioner makes no showing that he has 9 obtained prior leave from the Ninth Circuit to file his successive petition. Therefore, this Court 10 has no jurisdiction to consider Petitioner’s renewed application for relief under § 2254 and must 11 dismiss the petition. See Burton, 549 U.S. at 157. 12 B. Cognizability in Federal Habeas Corpus 13 1. Ground One 14 In Ground One, Petitioner asserts that he has been imprisoned with the wrong Social 15 Security number. (ECF No. 1 at 3.) Petitioner contends that he qualifies for the Elderly Parole 16 Program, Assembly Bill 3234, and asserts a violation of the “Racial Injustice Act.”3 (Id.) 17 By statute, federal courts “shall entertain an application for a writ of habeas corpus in 18 behalf of a person in custody pursuant to the judgment of a State court only on the ground that he 19 is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 20 § 2254(a). Whether Petitioner is entitled to relief pursuant to the Elderly Parole Program, 21 Assembly Bill 3234, or the Racial Justice Act are issues of state law. See Wilson v. Corcoran, 22 562 U.S. 1, 5 (2010) (per curiam) (“[I]t is only noncompliance with federal law that renders a 23 State’s criminal judgment susceptible to collateral attack in the federal courts.”); Estelle v. 24 McGuire, 502 U.S. 62, 67 (1991) (“We have stated many times that ‘federal habeas corpus relief 25 does not lie for errors of state law.’” (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990))). 26 Accordingly, Petitioner fails to state a cognizable clam for federal habeas corpus relief in Ground 27 One. 1 2. Ground Two 2 It is unclear what claim Petitioner is raising in Ground Two. The language is difficult to 3 decipher and comprehend. The petition mentions “Coleman v. Brown,” “Plata/Coleman,” and 4 “Clark/Armstrong,” which appear to reference various class action lawsuits concerning the 5 conditions of California state prisons. See Brown v. Plata, 563 U.S. 493, 500 (2011) (describing 6 Coleman v. Brown as a class action involving a class of prisoners with serious mental disorders 7 and Plata v. Brown as a class action involving prisoners with serious medical conditions); Clark 8 v. California, 739 F. Supp. 2d 1168, 1172 (N.D. Cal. 2010) (describing settlement agreement that 9 required California to comply with a remedial plan “to ensure that California prisoners with 10 developmental disabilities were protected from serious injury and discrimination on the basis of 11 their disability”); Armstrong v. Wilson, 124 F.3d 1019, 1021 (9th Cir. 1997) (“A certified class 12 of all present and future California state prison inmates and parolees with disabilities sued 13 California state officials in their official capacities, seeking injunctive relief for violations of the 14 RA [Rehabilitation Act of 1973] and the ADA [Americans with Disabilities Act] in state 15 prisons.”). 16 A claim is cognizable in habeas when a prisoner challenges “the fact or duration of his 17 confinement” and “seeks either immediate release from that confinement or the shortening of its 18 duration.” Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). In contrast, a civil rights action 19 pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of 20 confinement. McCarthy v. Bronson, 500 U.S. 136, 141–42 (1991); Preiser, 411 U.S. at 499. The 21 Ninth Circuit has “long held that prisoners may not challenge mere conditions of confinement in 22 habeas corpus.” Nettles v. Grounds, 830 F.3d 922, 933 (9th Cir. 2016) (en banc) (citing 23 Crawford v. Bell, 599 F.2d 890, 891–92 (9th Cir. 1979)). To the extent Petitioner challenges his 24 conditions of confinement in Ground Two, Petitioner has failed to state a cognizable claim for 25 federal habeas corpus relief. See Pinson v. Carvajal, 69 F.4th 1059, 1073 (9th Cir. 2023) (“[A] 26 successful claim sounding in habeas necessarily results in release, but a claim seeking release 27 does not necessarily sound in habeas.”). 1 “If the complaint is amenable to conversion on its face, meaning that it names the correct 2 defendants and seeks the correct relief, the court may recharacterize the petition so long as it 3 warns the pro se litigant of the consequences of the conversion and provides an opportunity for 4 the litigant to withdraw or amend his or her complaint.” Nettles, 830 F.3d at 936 (quoting Glaus 5 v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005)). The Court notes that habeas corpus and 6 prisoner civil rights actions differ in a variety of respects, such as the proper defendants, filing 7 fees, exhaustion requirements, and restrictions on future filings (e.g., the Prison Litigation 8 Reform Act’s three-strikes rule). Nettles, 830 F.3d at 936 (citing Robinson v. Sherrod, 631 F.3d 9 839, 841 (7th Cir. 2011); Glaus, 408 F.3d at 388). 10 Due to these differences and the disadvantages that recharacterization may have on 11 Petitioner’s claims, the undersigned finds that it would be inappropriate to construe the habeas 12 petition as a civil rights complaint under 42 U.S.C. § 1983. The Court notes that the filing fee for 13 § 1983 civil rights cases is $350, and Petitioner is required to pay the full amount by way of 14 deductions from income to Petitioner’s trust account, even if granted in forma pauperis status. 15 See 28 U.S.C. § 1915(b)(1). Moreover, the petition names CDCR Administration as Respondent 16 and thus, may not name the correct defendants. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) 17 (“[A] plaintiff must plead that each Government-official defendant, through the official’s own 18 individual actions, has violated the Constitution.”). 19 II. 20 RECOMMENDATION AND ORDER 21 Accordingly, the undersigned HEREBY RECOMMENDS that the petition for writ of 22 habeas corpus be DISMISSED as an unauthorized successive petition and for failure to state a 23 cognizable federal habeas claim. 24 Further, the Court DIRECTS the Clerk of Court to assign a District Court Judge to the 25 present matter. 26 This Findings and Recommendation is submitted to the assigned United States District 27 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 1 | THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 2 | written objections, no longer than fifteen (15) pages, including exhibits, with the Court and 3 | serve a copy on all parties. Such a document should be captioned “Objections to Magistrate 4 | Judge’s Findings and Recommendation.” The assigned United States District Court Judge will 5 | then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are 6 | advised that failure to file objections within the specified time may waive the right to appeal the 7 | District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 8 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 10 IT IS SO ORDERED. 11] Dated: _ June 10, 2025 [sf ey — 2 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11069121. Public record. Not legal advice.