                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 09 2012

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




                            FOR THE NINTH CIRCUIT



DAVID THAYNE SMITH,                              No. 11-55121

               Petitioner - Appellee,            D.C. No. 2:10-cv-00365-RSWL

  v.
                                                 MEMORANDUM *
R. GROUNDS, Warden,

               Respondent - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                    Ronald S.W. Lew, District Judge, Presiding

                             Submitted March 6, 2012 **

Before:        B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.

       Warden R. Grounds appeals the district court’s order granting David Thayne

Smith’s petition for a writ of habeas corpus under 28 U.S.C. § 2254. We have

jurisdiction under 28 U.S.C. § 2253, and we reverse.




          *
             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).
      While this appeal was pending, the Supreme Court decided Swarthout v.

Cooke, 131 S. Ct. 859 (2011) (per curiam). In that case, the Court stated 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 id. at 862-63.

      Smith was afforded the opportunity to be heard and provided a statement of

the reasons why parole was denied. The district court granted Smith relief on the

ground that the Governor’s reversal of the 2009 Board of Parole Hearings’

(“Board”) grant of parole was not supported by “some evidence” of current

dangerousness. Because this is not a proper ground for federal habeas relief, we

reverse. See Pearson v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011).

      Smith’s contention that the Governor violated his due process rights by

failing to hold a hearing before reversing the grant of parole by the Board is

foreclosed. See Styre v. Adams, 645 F.3d 1106, 1108 (9th Cir. 2011) (“[T]he Due

Process Clause does not require that the Governor hold a second suitability hearing

before reversing a parole decision.”).

      The stay of judgment pending appeal issued on January 28, 2011, is lifted,

and the district court’s order granting parole is reversed.

      REVERSED.


                                           2                                     11-55121
