Gary Smith v. A. Kane, et al, No. 08-15587 (9th Cir. 2011)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAR 16 2011 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT GARY SMITH, No. 08-15587 Petitioner - Appellant, D.C. No. 06-CV-01830-CW v. MEMORANDUM * A. P. KANE, Warden; JAMES DAVIS, Chairman, Board of Parole Hearings, Respondents - Appellees. Appeal from the United States District Court for the Northern District of California Claudia A. Wilken, District Judge, Presiding Submitted March 8, 2011 ** Before: FARRIS, LEAVY, and BYBEE, Circuit Judges. California state prisoner Gary Smith appeals pro se from the district court s judgment denying his 28 U.S.C. § 2254 habeas petition. We dismiss. Smith contends that the Board of Prison Terms 2003 decision to deny him * 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). parole for five years was not supported by some evidence and therefore violated his due process rights. After briefing was completed in this case, this court held that a certificate of appealability 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 (2011) (per curiam). Because Smith raises no procedural challenges regarding his parole hearing, a certificate of appealability cannot issue. Further, because Smith has not made a substantial showing of the denial of a constitutional right, we decline to certify the remaining claims. See 28 U.S.C. § 2253(c). DISMISSED. 2 08-15587
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