Arthur Martinez v. JOHN MARSHALL, Warden

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NOT FOR PUBLICATION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
ARTHUR MARTINEZ,
Petitioner - Appellee,
v.
JOHN MARSHALL, Warden,
Respondent - Appellant.
No. 10-56029
D.C. No. 2:06-cv-07131-DDP
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted February 11, 2013**
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Warden John Marshall appeals from the district court’s judgment granting
Arthur Martinez’s 28 U.S.C. § 2254 habeas petition and its subsequent order
denying Marshall’s motion for reconsideration. We have jurisdiction under 28
FILED
FEB 13 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-56029 2
U.S.C. § 2253, and we vacate and remand.
The district court granted Martinez relief on the ground that the state courts
had unreasonably applied federal law by concluding that “some evidence”
supported the Governor’s 2004 decision to deny Martinez parole. We review the
district court’s decision de novo. See Lambert v. Blodgett, 393 F.3d 943, 964 (9th
Cir. 2004). While this appeal was pending, the Supreme Court held that the only
federal right at issue in the parole context is procedural, and the only proper
inquiry is what process the inmate received, not whether the state court decided the
case correctly. See Swarthout v. Cooke, 131 S. Ct. 859, 862-63 (2011) (per
curiam). We accordingly vacate the judgment.
We remand for further proceedings on Martinez’s remaining claims.
VACATED and REMANDED.

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