FILED
NOT FOR PUBLICATION JUN 29 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KEITH E. WIGGINS, No. 09-15312
Petitioner - Appellant, D.C. No. 1:08-cv-01036-LJO
v.
MEMORANDUM *
KEN CLARK, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
California state prisoner Keith E. Wiggins appeals from the district court’s
judgment dismissing his 28 U.S.C. § 2254 habeas petition. We dismiss.
In his petition, Wiggins contends that the 2005 decision of the Board of
Parole Hearings (“Board”) denying his parole was not supported by “some
*
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).
evidence” of current dangerousness 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, 863 (2011) (per curiam). Because Wiggins raises no procedural
challenges to his 2005 parole determination, a COA cannot issue, and we dismiss
the appeal for lack of jurisdiction. See 28 U.S.C. § 2253(c)(2).
Wiggins’s Motion for Judicial Notice is denied as moot.
DISMISSED.
2 09-15312