FILED
NOT FOR PUBLICATION MAR 16 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GARY SMITH, No. 08-15587
Petitioner - Appellant, D.C. No. 06-CV-01830-CW
v.
MEMORANDUM *
A. P. KANE, Warden; JAMES DAVIS,
Chairman, Board of Parole Hearings,
Respondents - Appellees.
Appeal from the United States District Court
for the Northern District of California
Claudia A. Wilken, District Judge, Presiding
Submitted March 8, 2011 **
Before: FARRIS, LEAVY, and BYBEE, Circuit Judges.
California state prisoner Gary Smith appeals pro se from the district court’s
judgment denying his 28 U.S.C. § 2254 habeas petition. We dismiss.
Smith contends that the Board of Prison Terms’ 2003 decision to deny him
*
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).
parole for five years 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 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 (2011) (per curiam). Because Smith raises no procedural challenges
regarding his parole hearing, a certificate of appealability cannot issue. Further,
because Smith has not made a substantial showing of the denial of a constitutional
right, we decline to certify the remaining claims. See 28 U.S.C. § 2253(c).
DISMISSED.
2 08-15587