Hibbert v. Kane

FILED
NOT FOR PUBLICATION FEB 23 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

BYRON HIBBERT, No. 06-56839

Petitioner - Appellant, D.C. No. 2:04-cv-00504-SJO

v.
MEMORANDUM *
A. P. KANE,

Respondent - Appellee.

Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding

Submitted February 21, 2012 **

Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

California state prisoner Byron Hibbert appeals pro se from the district

court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We dismiss.

Hibbert contends that the Board’s 2001 decision to deny him parole violated

his due process rights because it was not supported by “some evidence” of

*
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).
dangerousness after he is deported. 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). Hibbert received all

of the process to which he was due. See id. at 862. Accordingly, a COA cannot

issue, and we dismiss the appeal for lack of jurisdiction. See 28 U.S.C.

§ 2253(c)(2).

Further, because Hibbert has not has made a substantial showing of the

denial of a constitutional right, we decline to certify his remaining claims. See id.

DISMISSED.

2 06-56839