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Robin Lynn Bailey v. Gary Swarthout

October 23, 2012

ROBIN LYNN BAILEY, PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS and RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se on his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2008 prison disciplinary finding that he was guilty of the specific act of escape, for which he was assessed a 150 Days Forfeiture of Credit. See Doc. No. 30, Ex. 2 at 2. For the reasons outlined below, the undersigned recommends that the petition be dismissed as moot.

Background

Petitioner filed his petition on August 31, 2010, alleging that there was insufficient evidence to support the 2008 disciplinary conviction, and that the disciplinary conviction was therefore arbitrary and capricious, in violation of petitioner's constitutional due process rights. See Doc. No. 1 at 4. As relief, petitioner requested that the charges be vacated and the forfeited credits be restored. See Doc. No. 2 at 19-20. In his traverse, filed on June 15, 2012, petitioner additionally requested that the prison be enjoined from prosecuting him for any disciplinary violations arising out of the events underlying the 2008 disciplinary conviction. See Doc. No. 33 at 21-22.

Following his disciplinary conviction, petitioner was criminally prosecuted in state court, and was convicted of escape in 2009. On August 26, 2010, the California Court of Appeals found insufficient evidence of escape and reversed the conviction. See Doc. No. 33 at 36-37. The Court of Appeals also found that "the evidence was more than ample to establish an attempt to escape from prison." Id. at 37. However, the Court of Appeals determined that, because the trial court failed to instruct the jury regarding an attempt to escape from prison, it could not reduce the conviction. Id. at 37-38. The Attorney General petitioned for review on the modification issue only, and on July 12, 2012, the California Supreme Court affirmed the Appellate Court, again noting that the Attorney General did not challenge the Court of Appeal's conclusion regarding the sufficiency of the evidence on the escape conviction. See Doc. No. 34 at 12.

On July 31, 2012, petitioner filed with the court Supplemental Authority in support of his petition. According to petitioner, under California regulations, he is entitled to dismissal of the disciplinary charge underlying this petition because the state courts have determined that there was insufficient evidence to support the escape conviction. See Cal. Code Reg., title 15, § 3316(c)(3) ("If a court finds the inmate not guilty after a finding of guilty in a disciplinary hearing, the rule violation charges shall be dismissed.").

The Order to Show Cause

On August 23, 2012, the court ordered the respondent to show cause why § 3316(c)(3) would not direct disposition of the petition. See Doc. No. 35. Respondent has responded, advising the court that the disciplinary decision has been dismissed by prison officials, and arguing that the petition is now moot. See Doc. No. 36 at 1.

A review of respondent's response reflects that, on September 7, 2012, J.A. Soares, Chief Disciplinary Officer, dismissed the Rules Violation Report at issue in this action. See Doc. No. 36-1 at 16. The dismissal further reads

This RVR is dismissed pursuant to CCR 3316(c)(3). Criminal conviction for escape reversed by Court of Appeals and reversal affirmed by the California Supreme Court. Per CCR 3326(a)(2) documents prepared for and issued in the disciplinary process shall not be placed in any file pertaining to the inmate. /s/ J.A. Soares CHIEF DISCIPLINARY OFFICER (CDO) 9/7/12

Id.

Respondent argues that, given this dismissal, there is no longer a live case or controversy, and as such, the petition should be dismissed. See Doc. No. 36 at 2.

Petitioner has also responded, arguing that the petition is not moot, because prison officials have now issued a Rules Violation Report against petitioner, alleging an attempt to escape. See Doc. No. 38. Petitioner alleges that, under CCR § 3316(a)(4), prison officials may only re-issue an RVR where the new disciplinary charge is a lesser-included offense. See id. at 3-4. He claims that the RVR is accordingly improperly re-issued, because the state Supreme Court has already determined that an attempt to escape is not a lesser-included offense of escape. Id. at 4.

Petitioner also notes that among the relief requested in his traverse was a prohibition against prison officials from charging him with any disciplinary violations in connection with the event underlying the ...


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