                                                                           FILED
                            NOT FOR PUBLICATION                              OCT 5 2011

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




                            FOR THE NINTH CIRCUIT



FRANK KENNETH BENSON,                            No. 10-16945

               Petitioner - Appellee,            D.C. No. 2:07-cv-02244-JKS

  v.
                                                 MEMORANDUM *
D. K. SISTO,

               Respondent - Appellant.



                    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.




          *
             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).
      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.




                                          2                                      10-16945
