Unpublished Disposition, 883 F.2d 1023 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 883 F.2d 1023 (9th Cir. 1989)

Bobby Wayne FRANKLIN, Petitioner-Appellant,v.Richard H. RISON, Warden, et al., Respondents-Appellees.

No. 88-5968.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 11, 1989.* Decided Aug. 24, 1989.

Before JAMES R. BROWNING, FARRIS and CANBY, Circuit Judges.


MEMORANDUM** 

Bobby Wayne Franklin appeals the denial of his petition for Habeas Corpus. He filed the petition requesting relief from sanctions imposed by the Institutional Disciplinary Committee of the institution in which he is serving a lawful sentence. The IDC recommended a rescission of his parole date, which is likely to extend his period of confinement up to twenty additional months. This action followed the discovery of a bunk adapter "fashioned in a manner consistent with that of a club" hidden between his and another inmate's cubicle. The issue is whether the district court used the proper standard of review. We affirm.

The only requirement for disciplinary action in a penal institution is that there be a showing of "some evidence" to support the conclusions of the IDC. The court reviews the case for "some evidence" that could support the conclusion reached by the disciplinary board. Superintendent v. Hill, 472 U.S. 445, 455-56, 105 S. Ct. 2768, 2774, 86 L. Ed. 2d 356, 365 (1985).

The "club" was concealed in the partition which separated the bunks of Franklin and another prisoner. It was readily accessible to each of them and each denied responsibility for its presence. The IDC punished both following a hearing.

Franklin incorrectly assumes that the burden of proving his possession of the bunk adapter must be carried by the prison beyond a reasonable doubt before he can be disciplined. He argues that the IDC's determination was arbitrary since it depended upon Franklin's "inevitable presence" near the discovery of the "club." His reliance upon United States v. Romano, 382 U.S. 136, 86 S. Ct. 279, 15 L. Ed. 210 (1965) and United States v. Mayes, 524 F.2d 803, 807 n. 2 (9th Cir. 1975) is misplaced. Those cases required proof "beyond a reasonable doubt" and neither involved prison discipline. The district court properly applied the "some evidence" standard applicable to penal institutions.

AFFIRMED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3