Frank Kenneth Benson v. D. K. Sisto

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NOT FOR PUBLICATION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
FRANK KENNETH BENSON,
Petitioner - Appellee,
v.
D. K. SISTO,
Respondent - Appellant.
No. 10-16945
D.C. No. 2:07-cv-02244-JKS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
James K. Singleton, District Judge, Presiding
Submitted September 27, 2011**
Before: HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.
Warden D. K. Sisto appeals from the district court’s grant of Frank Kenneth
Benson’s 28 U.S.C. § 2254 petition for habeas corpus. We have jurisdiction under
28 U.S.C. § 2253, and, because of intervening authority, we vacate and remand.
FILED
OCT 5 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-16945 2
The district court granted Benson relief on the ground that the state court’s
decision was contrary to California’s “some evidence” standard, and was based on
an unreasonable determination of the facts in light of the evidence. While this
appeal was pending, the Supreme Court decided Swarthout v. Cooke, 131 S. Ct.
859 (2011) (per curiam). In that case, the 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, 131 S. Ct. at 863. Because Benson raises no federal procedural
challenges, we vacate and remand.
We decline to address, in the first instance, Benson’s contention that the
Board of Parole’s determination that he was unsuitable for parole was an arbitrary
deprivation of his liberty interest. See Osborne v. Dist. Attorney’s Office for Third
Judicial Dist., 423 F.3d 1050, 1055-56 (9th Cir. 2005).
VACATED and REMANDED.

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