White v. Kane

FILED
NOT FOR PUBLICATION MAR 10 2011

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

FOR THE NINTH CIRCUIT

DUSHUN A. WHITE, No. 07-17169

Petitioner - Appellant, D.C. No. CV-05-02416-CRB

v.
MEMORANDUM *
A. P. KANE,

Respondent - Appellee.

Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding

Submitted March 8, 2011 **

Before: FARRIS, LEAVY, and BYBEE, Circuit Judges.

California state prisoner Dushun A. White appeals from the district court’s

judgment denying his 28 U.S.C. § 2254 habeas petition. We dismiss.

*
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).
 White contends that the Board’s 2003 decision to deny him parole was not

supported by “some evidence” and therefore violated his due process rights. After

briefing was completed in this case, this court held that a certificate of

appealability (“COA”) is required to challenge the denial of parole. See Hayward

v. Marshall, 603 F.3d 546, 554-55 (9th Cir. 2010) (en banc). Now the Supreme

Court has 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 v. Cooke, 131

S. Ct. 859, 862-63 (2011). Because White raises no procedural challenges, a COA

cannot issue, and we dismiss the appeal for lack of jurisdiction. See 28 U.S.C.

§ 2253(c)(2).

White’s request to file a letter brief, filed on October 2, 2008, is denied.

DISMISSED.

2 07-17169