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NOT FOR PUBLICATION MAR 10 2011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
PABLO JULIAN AGRIO, No. 07-17310
Petitioner - Appellant, D.C. No. CV-05-03525-JW
v.
MEMORANDUM *
ANTHONY KANE and ATTORNEY
GENERAL OF THE STATE OF
CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Northern District of California
James Ware, Chief District Judge, Presiding
Submitted March 8, 2011 **
Before: FARRIS, LEAVY, and BYBEE, Circuit Judges.
California state prisoner Pablo Julian Agrio appeals pro se 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).
Agrio contends that the Board’s 2004 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 Agrio 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).
DISMISSED.
2 07-17310