FILED
NOT FOR PUBLICATION MAY 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOHN CABALES, No. 07-16403
Petitioner - Appellant, D.C. No. CV-06-06673-MHP
v.
MEMORANDUM *
ROBERT AYERS, Jr. and BILL
LOCKYER, Attorney General,
Respondents - Appellees.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Submitted May 24, 2011 **
Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
California state prisoner, John Cabales, appeals pro se from the district
court’s judgment denying his 28 U.S.C. § 2254 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).
Cabales contends that the Board of Parole Hearings’ 2005 decision to deny
him parole was not supported by “some evidence” and therefore violated his due
process rights. After the 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 when there is a
liberty interest in parole 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, 863 (2011) (per curiam). Because Cabales
raises no procedural challenges regarding his parole hearing, a COA may not issue
on this claim, and we dismiss the appeal for lack of jurisdiction. See 28 U.S.C.
§ 2253(c)(2).
Further, because Cabales has not made a substantial showing of the denial of
a constitutional right on his other claims, we decline to certify those claims.
DISMISSED.
2 07-16403