Keith A. Somers v. Teresa A. Schwartz

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NOT FOR PUBLICATION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
KEITH A. SOMERS,
Petitioner - Appellant,
v.
TERESA A. SCHWARTZ,
Respondent - Appellee.
No. 08-15216
D.C. No. CV-04-00698-JKS/KJM
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
James K. Singleton, District Judge, Presiding
Submitted June 29, 2010**
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
California state prisoner Keith A. Somers appeals from the district court’s
judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction
under 28 U.S.C. § 2253, and we vacate and remand.
FILED
JUL 20 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

08-15216 2
Somers contends that the Board of Prison Terms’s 2002 (the “Board”)
decision to deny him parole was not supported by “some evidence” and therefore
violated his due process rights. However, the record reflects that the district court
confined its review of the state court decision affirming the Board’s denial of
parole to whether the decision was supported solely by the commitment offense.
Because the district court did not have the benefit of this court’s recent en banc
opinion, Hayward v. Marshall, 603 F.3d 546, 562 (9th Cir. 2010), we vacate and
remand for further proceedings consistent with that decision.
The parties should bear their own costs on appeal.
VACATED and REMANDED.

-- 2 of 2 --