(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-1399 DB P 12 Petitioner, 13 v. ORDER 14 CDCR, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. 19 Examination of the in forma pauperis application reveals that petitioner is unable to afford the 20 costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 21 U.S.C. § 1915(a). 22 In his petition, petitioner challenges a December 2018 disciplinary conviction. (See ECF 23 No. 1 at 5, 16, 21.) Petitioner challenged the same disciplinary conviction in a previously-filed 24 petition in this court – Ausborn v. CDCR, (“Ausborn I”) No. 2:20-cv-0181 KJM DB P. Upon 25 screening the petition in Ausborn I, the court found it likely petitioner had not exhausted his state 26 remedies because he had not presented his claim regarding his disciplinary conviction to the 27 California Supreme Court. The court then ordered petitioner to explain whether he had done so. 28 //// 2 OU UV OEP MUO IC OF ee PF Aye eve 1 | When petitioner failed to respond to the court’s order, on May 5, 2020, the court dismissed the case. 2 || See Ausborn I (ECF No. 9.) 3 In the present case, petitioner states that he raised this disciplinary conviction claim with the 4 | state superior court. (See ECF No. 1 at 7.) Attached to his petition is a copy of a May 27, 2020 ruling 5 | from the San Joaquin County Superior Court dismissing petitioner’s habeas petition challenging a 6 | 2018 rules violation hearing. (Id. at 16.) However, the petition indicates that petitioner has not fully 7 || exhausted his state remedies by fairly presenting his claim to the California Supreme Court. See 8 | Duncan v. Henry, 513 U.S. 364, 365 (1995). As petitioner was informed in Ausborn I, this court may 9 | not grant a habeas petition unless petitioner first exhausts his state judicial remedies through the 10 | state’s highest court. Ausborn I (ECF No. 8); 28 U.S.C. § 2254(b)(1). 11 Petitioner will again be given an opportunity to demonstrate that he has fully exhausted 12 | his state judicial remedies. Petitioner is warned that if has not fully exhausted his claim or if he 13 || fails to file a timely response to this order, this court will recommend this case be dismissed. 14 Accordingly, IT IS HEREBY ORDERED as follows: 15 1. Petitioner’s application to proceed in forma pauperis (ECF No. 4) is granted; 16 2. Within thirty (30) days of the date of this order, petitioner must inform the court 17 || whether he has presented any federal constitutional claims regarding his disciplinary conviction 18 | to the California Supreme Court. If possible, petitioner should provide the court with a copy of 19 | the petition filed in the California Supreme Court along with a copy of any ruling made by the 20 | California Supreme Court. 21 3. Plaintiff is warned that if he fails to comply with this order, this court will recommend 22 | dismissal of this action. 23 | Dated: August 27, 2020 24 25 | DLB:9/DB/prisoner-habeas/ausb1399.scrn osc 6 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 27 28