FILED
NOT FOR PUBLICATION OCT 07 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BYRON HIBBERT, No. 07-17044
Petitioner - Appellant, D.C. No. CV-06-03294-WHA
v.
BEN CURRY, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
California state prisoner Byron Hibbert 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. § 2253,1 and we affirm.
Hibbert contends that the Board’s 2004 decision to deny him parole was not
supported by “some evidence” and therefore violated his due process rights. The
state court did not unreasonably conclude that some evidence supports the Board’s
decision. See 28 U.S.C. § 2254(d); see also Hayward v. Marshall, 603 F.3d 546,
563 (9th Cir. 2010) (en banc).
Hibbert’s request for judicial notice is granted.
AFFIRMED.
1
We certify for appeal, on our own motion, the issue of whether the 2005
decision of the California Board of Prison Terms (“the Board”) to deny parole
violated due process. We deny a certificate of appealability as to Hibbert’s claim
that the district court improperly denied his motion under Rule 60(b) of the Federal
Rules of Civil Procedure.