FILED
NOT FOR PUBLICATION JUN 3 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DANIEL P. ALLEN, No. 08-55616
Petitioner - Appellant, D.C. No. 2:05-cv-01168-RSWL
v.
MEMORANDUM *
CALIFORNIA MEN’S COLONY - EAST
and JOHN MARSHALL, Warden,
Respondents - Appellees.
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Submitted May 24, 2011 **
Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
California state prisoner Daniel P. Allen appeals pro se from the district
court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We dismiss.
Allen contends that his due process rights were violated by the Board’s 2002
*
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).
decision finding him unsuitable for parole, because the decision was not supported
by evidence of current dangerousness. 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, 863 (2011) (per curiam). Because Allen
raises no procedural challenges regarding his parole hearing, a COA cannot issue,
and we dismiss the appeal for lack of jurisdiction. See 28 U.S.C. § 2253(c)(2).
Further, because Allen has not has made a substantial showing of the denial
of a constitutional right, we decline to certify his remaining claims. See id.
DISMISSED.
2 08-55616