De La Cruz v. Marshall

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NOT FOR PUBLICATION JUL 18 2011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