Chavez v. Kane

FILED
NOT FOR PUBLICATION MAR 14 2011

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

FOR THE NINTH CIRCUIT

JUAN MANUEL CHAVEZ, No. 07-56427

Petitioner - Appellant, D.C. No. CV-05-03894-R

v.
MEMORANDUM *
A. P. KANE,

Respondent - Appellee.

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding

Submitted March 8, 2011 **

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

California state prisoner Juan Manuel Chavez 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).
 The stay of this case is lifted because a decision has been filed in Hayward v.

Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc).

Chavez contends that the Board’s 2002 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 Chavez raises no procedural challenges regarding his parole

hearing, a COA cannot issue. Further, because Chavez has not has made a

substantial showing of the denial of a constitutional right, we decline to certify his

remaining claims. See 28 U.S.C. § 2253(c)(2).

DISMISSED.

2 07-56427