Rubio v Harrison

390 F. App'x 713

Opinion

MEMORANDUM **

California state prisoner Mario Rene Rubio appeals pro se from the district court’s judgment. denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253, 1 and we reverse and remand.

Rubio contends that the prison disciplinary decision, finding him guilty of indecent exposure with a prior court conviction under California Penal Code sections 314 or 288, was not supported by “some evidence” and therefore violated his due process rights. We remand for the district court to determine whether any of Rubio’s prior court convictions qualify as convictions under California Penal Code sections 314 or 288, and if so, whether some evidence supports the hearing officer’s finding. See Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985).

REVERSED AND REMANDED.

Judge REINHARDT dissents.

** This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.-

1 . We certify for appeal, on our own motion, the issue of whether the 2003 prison disciplinary decision assessing 150 days loss of good time work credits and 90 days loss of privileges violated due process.