                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 21 2010

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




                            FOR THE NINTH CIRCUIT



JOSEPH P. GUTIERREZ,                              No. 07-15812

               Petitioner - Appellant,            D.C. No. CV-05-01537-SI

  v.
                                                  MEMORANDUM *
A. P. KANE; BOARD OF PRISONS
TERMS COMMISSIONERS,

               Respondents - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                      Susan Illston, District Judge, Presiding

                              Submitted June 29, 2010 **

Before:        ALARCÓN, LEAVY, and GRABER, Circuit Judges.

       California state prisoner Joseph P. Gutierrez appeals pro se from the district

court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have




          *
             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).
jurisdiction under 28 U.S.C. § 2253, and we affirm in part and vacate and remand

in part.

       Gutierrez contends that the applicable standard to review parole decisions by

the California Board of Prison Terms (“the Board”) is preponderance of the

evidence. This argument is foreclosed by Hayward v. Marshall, 603 F.3d 546,

562-63, 569 (9th Cir. 2010) (en banc). He further argues that the Board’s 2003

decision to deny him parole did not have evidentiary support. Because the district

court did not have the benefit of this court’s en banc opinion in Hayward at the

time of its decision, we vacate the judgment insofar as the district court concluded

that “some evidence” supports the denial of parole, and remand for further

proceedings and development of the record. See id. (stating that under California’s

parole scheme the paramount consideration is whether the prisoner poses a current

threat to public safety).

       Gutierrez maintains that the district court erred by declining to address his

claim that the Board is biased and improperly denies parole on a routine basis. The

record indicates that the district court did not err and Gutierrez fails to show he was




                                           2                                    07-15812
entitled to an evidentiary hearing as to this claim. See Insyxiengmay v. Morgan,

403 F.3d 657, 669-70 (9th Cir. 2005).

      AFFIRMED in part; VACATED in part and remanded for further

proceedings.




                                         3                                   07-15812
