Keith A. SOMERS, Petitioner-Appellant, v. Teresa A. SCHWARTZ, Respondent-Appellee, 388 F. App'x 693

MEMORANDUM California state prisoner Keith A. Som-ers 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. 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. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.