                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 20 2010

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




                            FOR THE NINTH CIRCUIT



KEITH A. SOMERS,                                 No. 08-15216

              Petitioner - Appellant,            D.C. No. CV-04-00698-JKS/KJM

  v.
                                                 MEMORANDUM *
TERESA A. SCHWARTZ,

              Respondent - Appellee.



                    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.



          *
             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).
      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                                      08-15216
