Bailey v. Swarthout

Filing 35

ORDER signed by Magistrate Judge Gregory G. Hollows on 8/23/2012, ORDERING that within 21 days, respondent shall SHOW CAUSE why California Code of Regulations, title 15, § 3316 would not direct disposition of this petition; petitioner may file an optional response within 7 days after service of respondent's response.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBIN LYNN BAILEY,

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Petitioner,

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No. 2: 10-cv-2454 KJM GGH

vs.
GARY SWARTHOUT,
Respondent.
/

ORDER

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Petitioner is a state prisoner proceeding pro se on his petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2008 prison disciplinary finding

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that he was guilty of the specific act of escape, for which he was assessed a 150-day credit loss.

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See Doc. No. 30, Ex. 2 at 2. Petitioner alleges that there was insufficient evidence to support the

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finding that he committed the act of escape and that such a finding was arbitrary and capricious,

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in violation of his constitutional due process rights. See Doc. No. 1 at 4.

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Petitioner was additionally prosecuted in state court, and was convicted in 2009 of

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escape. On August 26, 2010, the California Court of Appeals found insufficient evidence of

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escape and reversed the conviction. See Doc. No. 33 at 36-37. The Court of Appeals also found

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that “the evidence was more than ample to establish an attempt to escape from prison.” Id. at 37.

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However, the Court of Appeals determined that, because the trial court failed to instruct the jury
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regarding an attempt to escape from prison, it could not reduce the conviction. Id. at 37-38. The

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Attorney General petitioned for review on the modification issue only, and on July 12, 2012, the

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California Supreme Court affirmed the Appellate Court, again noting that the Attorney General

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did not challenge the Court of Appeal’s conclusion regarding the sufficiency of the evidence on

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the escape conviction. See Doc. No. 34 at 12.

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On July 31, 2012, petitioner filed with the court Supplemental Authority in

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support of his petition. According to petitioner, under California regulations, he is entitled to

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dismissal of the disciplinary charge underlying this petition because the state courts have

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determined that there was insufficient evidence to support the escape conviction. See Cal. Code

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Reg., title 15, § 3316(c)(3) (“If a court finds the inmate not guilty after a finding of guilty in a

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disciplinary hearing, the rule violation charges shall be dismissed.”).

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Accordingly, IT IS ORDERED that:

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1. Within 21 days of the filing date of this order, respondent shall show cause

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why California Code of Regulations, title 15, § 3316 would not direct disposition of this petition.

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2. Petitioner may file an optional response within 7 days after service of

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respondent’s response.

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DATED: August 23, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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ggh:rb

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bail2454osc

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