                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 04 2010

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




                            FOR THE NINTH CIRCUIT



LEROY SMITH,                                     No. 09-16158

               Petitioner - Appellant,           D.C. No. 1:07-cv-00303-RTB

  v.
                                                 MEMORANDUM *
JAMES YATES,

               Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                     Roger T. Benitez, District Judge, Presiding

                          Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       California state prisoner Leroy Smith appeals pro se from the district court’s

order denying his 28 U.S.C. § 2254 habeas petition challenging prison disciplinary




          *
             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).
action. We have jurisdiction under 28 U.S.C. § 2253 1, and we affirm.

      Smith first contends that his due process rights were violated because the

prison authorities’ decision and the assessed 120-day credit forfeiture was not

supported by some evidence and because the Senior Hearing Officer improperly

denied Smith’s request for three additional witnesses. The record reflects that

Smith received all process that was due and that some evidence supports the

disciplinary findings. See Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974); see

also Superintendent v. Hill, 472 U.S. 445, 455 (1985). Contrary to Smith’s

contentions, no due process violation resulted from the failure to call witnesses

who could not provide any new relevant information. See Baxter v. Palmigiano,

425 U.S. 308, 321 (1976); see also Bostic v. Carlson, 884 F.2d 1267, 1271-72 (9th

Cir. 1989).

      Smith also contends that he was denied equal protection because he was

found guilty under the same circumstances under which other inmates were

exonerated. The record reflects that no equal protection violation occurred because

Smith received the same disciplinary process and procedural safeguards received

by the inmates whose charges were dismissed. See Bruce v. Ylst, 351 F.3d 1283,


      1
         We certify for appeal, on our own motion, the issue of whether Smith’s
rights to due process and equal protection were violated at the disciplinary hearing
where Smith was found guilty of possessing inmate-manufactured alcohol.

                                                                               09-16158
1288 (9th Cir. 2003) (“Although the Equal Protection Clause ensures similarly

situated persons are treated alike, it does not ensure absolute equality.”) The

prison official’s determinations were neither contrary to, nor involved an

unreasonable application of, clearly established federal law, nor was the decision

based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding. See 28 U.S.C. § 2254(d)(1)-(2).

      AFFIRMED.




                                                                                  09-16158
