Mario Rene Rubio v. C. M. Harrison

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO RENE RUBIO,
Petitioner - Appellant,
v.
C. M. HARRISON,
Respondent - Appellee.
No. 08-55467
D.C. No. 2:05-cv-08691-ODW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Submitted July 19, 2010**
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
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
FILED
AUG 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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We certify for appeal, on our own motion, the issue of whether the 20031
prison disciplinary decision assessing 150 days loss of good time work credits and
90 days loss of privileges violated due process.
08-55467 2
jurisdiction under 28 U.S.C. § 2253, and we reverse and remand.1
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 (1985).
REVERSED AND REMANDED.

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Judge Reinhardt dissents.
FILED
AUG 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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