FILED
NOT FOR PUBLICATION JUL 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JERRY EMERY DE LA CRUZ, No. 07-55909
Petitioner - Appellant, D.C. No. CV-06-05716-GPS
v.
MEMORANDUM *
J. MARSHALL,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
George P. Schiavelli, District Judge, Presiding
Submitted July 12, 2011 **
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
California state prisoner Jerry Emery De La Cruz appeals pro se from the
district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We
dismiss.
De La Cruz contends that the Board of Prison Terms’ 2004 decision to deny
*
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).
him parole was not supported by “some evidence” and therefore violated his due
process rights. He also contends the Board failed to fix a maximum term of
punishment, and that the district court abused its discretion by not providing an
opportunity to file objections to the Magistrate Judge’s Final Report and
Recommendation. 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 De La Cruz 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 De La Cruz has not has made a substantial showing of the
denial of a constitutional right, we decline to certify his remaining claims. Id.
DISMISSED.
2 07-55909