                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 02 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MARIO RENE RUBIO,                                No. 08-55467

               Petitioner - Appellant,           D.C. No. 2:05-cv-08691-ODW

  v.
                                                 MEMORANDUM *
C. M. HARRISON,

               Respondent - Appellee.



                    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




          *
             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).
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 (1985).

      REVERSED AND REMANDED.




      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.

                                         2                                    08-55467
                               FILED
                                AUG 02 2010

                            MOLLY C. DWYER, CLERK
                             U .S. C O U R T OF APPE ALS




Judge Reinhardt dissents.
