FILED
NOT FOR PUBLICATION AUG 05 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HAROLD HARVEY HAWKS, No. 06-17383
Petitioner - Appellant, D.C. No. CV-05-02853-JSW
v.
MEMORANDUM *
ANTHONY KANE; ARNOLD
SCHWARZENEGGER, Governor;
BOARD OF PRISON TERMS,
Respondents - Appellees.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted August 2, 2011 **
Before: RYMER, IKUTA, and N.R. SMITH, Circuit Judges.
California state prisoner Harold Harvey Hawks appeals pro se from the
district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
*
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).
Hawks contends that the Board of Prison Terms’ 2003 decision to deny him
parole was not supported by “some evidence” and therefore violated his due
process rights. 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). Hawks raises no procedural challenges, so his claim is not
cognizable.
Hawks contends that the parole regulation set forth in section 2402(c)(1) of
the California Code of Regulations is unconstitutionally vague. The state court’s
rejection of this claim was neither contrary to, nor an unreasonable application of,
clearly established federal law because the regulation is not “too vague to provide
any guidance.” Arave v. Creech, 507 U.S. 463, 471 (1993); see also Hess v. Bd. of
Parole and Post-Prison Supervision, 514 F.3d 909, 913 (9th Cir. 2008) (“The Due
Process Clause does not require the same precision in the drafting of parole release
statutes as is required in the drafting of penal laws.”).
Hawks also contends that the Board’s denial of parole violated his rights
under Apprendi v. New Jersey, 530 U.S. 466 (2000), or Blakely v. Washington, 542
U.S. 296 (2004). The state court’s rejection of this claim was neither contrary to,
nor an unreasonable application of, federal law because the Board did not increase
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Hawks’ sentence beyond the statutory maximum of life imprisonment for his crime
of second degree murder.
Hawks’s motion for judicial notice is denied.
AFFIRMED.
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