FILED
NOT FOR PUBLICATION AUG 11 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANTHONY MARTINEZ, No. 07-56219
Petitioner - Appellant, D.C. No. 5:05-cv-00045-AHM-
PLA
v.
CHARLES HARRISON, Acting Warden, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Submitted August 2, 2011 **
Before: RYMER, IKUTA, and N.R. SMITH, Circuit Judges.
California state prisoner Anthony Martinez appeals from the district court’s
judgment denying his 28 U.S.C. § 2254 habeas petition. We dismiss.
Martinez contends that the Governor’s 2004 reversal of the Board’s grant of
parole was not supported by “some evidence” and therefore violated his due
*
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).
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).
In his opening brief, Martinez does not raise any procedural challenges. In a
28(j) letter, however, he argues that Cooke does not foreclose his claims because it
did not address whether a right to parole arises in California under the United
States Constitution in the absence of some evidence of future danger. In a second
28(j) letter, Martinez argues his due process rights were violated because the
Governor did not hold a hearing before denying him parole. These issues are not
properly before us. See Pearson v. Muntz, 639 F.3d 1185, 1191 n.5 (9th Cir.
2011). In any event, Martinez’s contentions are foreclosed. See id. at 1191; Styre
v. Adams, __ F.3d __, 2011 WL 2176465, *1-2 (9th Cir. June 6, 2011).
As there are no grounds for a COA to issue, we dismiss the appeal for lack
of jurisdiction. See 28 U.S.C. § 2253(c)(2).
DISMISSED.
2 07-56219