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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 11 RAMON MURILLO, ) Case No. EDCV 19-1355 JGB(JC) ) 12 Petitioner, ) ) ORDER SUMMARILY DISMISSING 13 v. ) PETITION FOR WRIT OF HABEAS ) CORPUS AND ACTION 14 WARDEN FOSS, ) ) 15 ) Respondent. ) 16

I. SUMMARY

17 18 On July 24, 2019, petitioner Ramon Murillo (also known as Mona Murillo), 19 a prisoner in state custody who is proceeding pro se, formally filed a Petition for 20 Writ of Habeas Corpus (“Petition”) and a separate memorandum of points an 21 authorities (“Memo”). Petitioner challenges the restitution ordered in San 22 Bernardino County Superior Court Case No. FSB19885 (“State Case”). (Petition 23 at 2, 5; Memo at 3-6). The Petition, construed liberally, appears to claim that 24 petitioner should not be liable for the restitution imposed because: (1) at least part 25 of the restitution imposed relates to a “stayed” sentence; and (2) the California 26 Department of Corrections and Rehabilitation (“CDCR”) has already taken from 27 petitioner more than the restitution amount petitioner allegedly owes. (Petition at 28 5; Memo at 4-6). Petitioner claims that the payment of such restitution violates his 1 state and federal constitutional rights and seeks an order requiring the CDCR to 2 return to petitioner the portion of restitution paid that petitioner claims petitioner 3 does not owe. (Memo at 6). 4 It plainly appears from the face of the Petition (which incorporates the 5 Memo by reference), that petitioner is not entitled to relief at this time because 6 restitution-related challenges are not cognizable on federal habeas review and this 7 Court lacks federal habeas jurisdiction to consider them. Accordingly, the Petition 8 and this action are hereby dismissed without prejudice pursuant to Rule 4 of the 9 Rules Governing Section 2254 Cases in the United States District Courts which 10 requires a judge promptly to examine a federal habeas petition, and to dismiss it if 11 “it plainly appears from the petition and any attached exhibits that the petitioner is 12 not entitled to relief in the district court.” 13 II. DISCUSSION 14 A federal court may only grant a petition for writ of habeas corpus if the 15 petitioner can show that the petitioner “is in custody in violation of the 16 Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). This 17 language requires a nexus between a petitioner’s claim and the unlawful nature of 18 the custody. Bailey v. Hill, 599 F.3d 976, 980 (9th Cir. 2010) (citation omitted). 19 Such a nexus is not met by a challenge to a restitution order. Id. at 980-81 (claim 20 that petitioner ordered to pay restitution in violation of Constitution does not 21 constitute claim that petitioner is in custody in violation of Constitution). 22 “[Section] 2254 does not confer jurisdiction over a state prisoner’s in-custody 23 challenge to a restitution order imposed as part of a criminal sentence.” Bailey, 24 599 F.3d at 982. 25 Moreover, “[a]ccording to traditional interpretation, the writ of habeas 26 corpus is limited to attacks upon the legality or duration of confinement.” 27 Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979) (citing Preiser v. Rodriguez, 28 411 U.S. 475, 484-86 (1973)). Petitioner’s restitution-related claims do not 2 1 challenge the legality or duration of petitioner’s confinement. Such challenges, 2 even if successful, would not affect the fact or duration of petitioner’s custody. 3 Accordingly, these claims are not cognizable on federal habeas review. See, e.g., 4 Ramirez v. Frauenheim, 2016 WL 8919461, at *12 (C.D. Cal. Dec. 28, 2016) 5 (claim challenging imposition of restitution does not attack legally or duration of 6 confinement and is not cognizable on federal habeas review), report and 7 recommendation adopted, 2017 WL 1902144 (C.D. Cal. May 8, 2017), cert. of 8 appealability denied, 2018 WL 2771399 (9th Cir. Jan. 12, 2018); Noriega v. 9 Madden, 2016 WL 8259521, at *21 (C.D. Cal. Dec. 28, 2016) (same), report and 10 recommendation adopted, 2017 WL 652446 (C.D. Cal. Feb. 15, 2017); Flores v. 11 Hickman, 533 F. Supp. 2d 1068, 1085 (C.D. Cal. 2008) (same). 12 As petitioner’s restitution-related challenges are not cognizable on federal 13 habeas review and the Court does not have federal habeas jurisdiction to grant 14 relief on petitioner’s claims, the Petition must be dismissed.1 15 16 1The Court takes judicial notice from its docket and court records that petitioner appears 17 to have filed four prior federal habeas petitions challenging petitioner’s conviction and/or 18 sentence in the State Case. See Dockets in Murillo v. Carey, C.D. Cal. Case No. 01-914 GAF(VBK) (dismissed on the merits with prejudice), Murillo v. Garcia, C.D. Cal. Case No. 08- 19 476 GAF(VBK) (dismissed as second/successive), Murillo v. Hernandez, C.D. Cal. Case No. 08- 809 GAF(VBK) (dismissed as second/successive), and Murillo v. Neotti, C.D. Cal. Case No. 10- 20 851 GAF(VBK) (dismissed as second/successive); see also Fed. R. Evid. 201; Harris v. County 21 of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (court may take judicial notice of undisputed matters of public record including documents on file in federal or state courts). 22 23 As petitioner was advised in the prior federal habeas actions, before a habeas petitioner may file a second or successive petition in a district court, such petitioner must apply to the 24 appropriate court of appeals for an order authorizing the district court to consider the application. Burton v. Stewart, 549 U.S. 147, 152-53 (2007) (citing 28 U.S.C. § 2244(b)(3)(A)). This 25 provision “creates a ‘gatekeeping’ mechanism for the consideration of second or successive 26 applications in district court.” Felker v. Turpin, 518 U.S. 651, 657 (1996); see also Reyes v. Vaughn, 276 F.Supp.2d 1027, 1028-30 (C.D. Cal. 2003) (discussing applicable procedures in 27 Ninth Circuit). A district court lacks jurisdiction to consider the merits of a second or successive 28 habeas petition in the absence of proper authorization from a court of appeals. Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam) (citing United States v. Allen, 157 (continued...) 3 1] 1. ORDER 2 IT IS THEREFORE ORDERED that the Petition and this action are 3 || dismissed without prejudice for lack of jurisdiction and that Judgment be entered 4 || accordingly. 5 IT IS SO ORDERED. 6 || DATED: August 12, 2019 8 py eer 9 HON@RABLE JESUS G. BERNAL 10 UNITED STATES DISTRICT JUDGE

11 D Presented on this 7th day of August, 2019, by:? 13 IS 1 4 . oe Honorable J acqueling Chooliian 15 | UNITED STATES MAGISTRATE JUDGE 16 17 18 | 19 '(...continued) F.3d 661, 664 (9th Cir. 1998)), cert. denied, 538 U.S. 984 (2003). To the extent the Petition 20 || challenges the judgment in the State Case, the Petition — like petitioner’s three prior federal 1 petitions — is successive. It appears from a search of the Ninth Circuit’s docket, of which this Court also takes judicial notice, that petitioner has not obtained authorization to file the current 22 || Petition. See Dockets in Murillo v. Gipson, 9th Cir. Case No. 12-73048 and Murillo v. Sherman, 9th Cir. Case No. 14-71108 (denying applications for authorization to file second or successive 23 | habeas petition). Since petitioner filed the Petition without authorization from the Ninth Circuit, 74 || the Court also lacks jurisdiction to consider it to the extent it challenges the judgment in the State Case. 25 *Pursuant to Local Rule 72-3.2, the Magistrate Judge promptly shall examine a petition 26 for writ of habeas corpus, and if it plainly appears from the face of the petition and any exhibits 27 || annexed to it that the petitioner is not entitled to relief, the Magistrate Judge may prepare a proposed order for summary dismissal and submit it and a proposed judgment to the District 28 || Judge.