Wayne Graham v. Ben Curry, No. 08-16422 (9th Cir. 2011)
Annotate this Case
Download PDF
FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS APR 11 2011 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT WAYNE A. GRAHAM, No. 08-16422 Petitioner - Appellant, D.C. No. 3:06-CV-07313-CRB v. MEMORANDUM * BEN CURRY, Warden, Respondent - Appellee. Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding Submitted April 5, 2011 ** Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges. California state prisoner Wayne A. Graham appeals pro se from the district court s judgment denying his 28 U.S.C. § 2254 habeas petition. We dismiss. Graham contends that the Board of Prison Term s 2005 decision to deny him 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). Because Graham 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 Graham has not has made a substantial showing of the denial of a constitutional right, we decline to certify his remaining claims. Id. DISMISSED. 2 08-16422
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
