                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 13 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ARTHUR MARTINEZ,                                 No. 10-56029

               Petitioner - Appellee,            D.C. No. 2:06-cv-07131-DDP

    v.
                                                 MEMORANDUM *
JOHN MARSHALL, Warden,

               Respondent - Appellant.



                    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




          *
             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).
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.




                                           2                                      10-56029
