Fernando SANCHEZ, Petitioner-Appellee, v. A.P. KANE, Warden, Respondent-Appellant, 215 F. App'x 698

ORDER We AFFIRM IN PART, REVERSE IN PART, AND REMAND. We affirm that portion of the district court’s order granting Fernando Sanchez’s petition for writ of habeas corpus because the Governor’s factual findings rested partially on materials that were not part of the record presented to the Board of Prison Terms at its December 5, 2002, hearing. We reverse the district court’s order that Sanchez be immediately released, and we remand to the district court with instructions to modify its order so as to direct the Governor to vacate his May 2, 2003, decision denying parole.

The Board of Prison Terms’s December 5, 2002, decision to grant parole shall be deemed reinstated as of the date of the district court’s order. The Governor may thereafter issue a new decision on Sanchez’s suitability for parole based on the record presented to the Board. Cf. In re Capistran, 107 Cal. App.4th 1299, 1307, 132 Cal.Rptr.2d 872 (Ct.App.2003). This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.