(HC)Ausborn v. CDCR ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RANDY AUSBORN, No. 2:20-cv-0181 DB P 12 Petitioner, 13 v. ORDER 14 CDCR, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus 18 under 28 U.S.C. § 2254. Petitioner challenges a 2018 prison disciplinary conviction that resulted 19 in a loss of sentence credits. Before the court is petitioner’s petition for screening and his motion 20 to proceed in forma pauperis. 21 Examination of the in forma pauperis application reveals that petitioner is unable to afford 22 the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 23 28 U.S.C. § 1915(a). 24 Rule 4 of the Rules Governing § 2254 Cases requires the court to make a preliminary 25 review of each petition for writ of habeas corpus. The court must dismiss a petition "[i]f it plainly 26 appears from the petition . . . that the petitioner is not entitled to relief." Rule 4, Rules Governing 27 § 2254 Cases; Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Otherwise, the Court will 28 order respondent to respond to the petition. Rule 5, Rules Governing § 2254 Cases. 1 A petitioner who is in state custody and wishes to challenge his conviction by a petition 2 for writ of habeas corpus must have exhausted state judicial remedies. 28 U.S.C. § 2254(b)(1). 3 The exhaustion doctrine is based on comity to the state court and gives the state court the initial 4 opportunity to correct the state’s alleged constitutional deprivations. Coleman v. Thompson, 501 5 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 6 1163 (9th Cir. 1988). 7 A petitioner can satisfy the exhaustion requirement by providing the highest state court 8 with a full and fair opportunity to consider each claim before presenting it to the federal court. 9 Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); 10 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest 11 state court was given a full and fair opportunity to hear a claim if the petitioner has presented the 12 highest state court with the claim’s factual and legal bases. Duncan, 513 U.S. at 365 (legal basis); 13 Keeney v. Tamayo-Reyes, 504 U.S. 1, 9 (1992) (factual basis). 14 Upon review of the instant petition for writ of habeas corpus, it appears that petitioner has 15 not presented his claim regarding his disciplinary conviction to the highest state court, the 16 California Supreme Court. If he has not done so, the petition must be dismissed without 17 prejudice to its renewal after petitioner has filed a petition in the California Supreme Court and 18 the California Supreme Court has denied it. If petitioner has presented his claim regarding his 19 disciplinary conviction to the California Supreme Court, petitioner must inform this court that he 20 has exhausted his state court remedies. Without knowing what claims, if any, have been 21 presented to the California Supreme Court, the court is unable to proceed to the merits of the 22 petition. See 28 U.S.C. § 2254(b)(1). 23 Accordingly, IT IS HEREBY ORDERED as follows: 24 1. Petitioner’s application to proceed in forma pauperis (ECF No. 2) is granted; 25 2. Within thirty (30) days of the date of this order, petitioner must inform the court 26 whether he has presented any federal constitutional claims regarding his disciplinary 27 conviction to the California Supreme Court. If possible, petitioner should provide the 28 //// 1 court with a copy of the petition filed in the California Supreme Court along with a copy 2 of any ruling made by the California Supreme Court. 3 3. Plaintiff is warned that if he fails to comply with this order, this court will recommend 4 dismissal of this action. 5 | Dated: February 7, 2020 g ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 9 10 11 12 | DLB:9 DLB | □□□□□□□□□□□□□□□□□□□□□□□□□□□□□ exh 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28