                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 07 2010

                                                                        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. 07-17044

               Petitioner - Appellant,           D.C. No. CV-06-03294-WHA
  v.

BEN CURRY,                                       MEMORANDUM *

               Respondent - Appellee.

                    Appeal from the United States District Court
                      for the Northern District of California
                    William H. Alsup, District Judge, Presiding

                          Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, 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 have




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

      Hibbert contends that the Board’s 2004 decision to deny him parole was not

supported by “some evidence” and therefore violated his due process rights. The

state court did not unreasonably conclude that some evidence supports the Board’s

decision. See 28 U.S.C. § 2254(d); see also Hayward v. Marshall, 603 F.3d 546,

563 (9th Cir. 2010) (en banc).

      Hibbert’s request for judicial notice is granted.

      AFFIRMED.




      1
        We certify for appeal, on our own motion, the issue of whether the 2005
decision of the California Board of Prison Terms (“the Board”) to deny parole
violated due process. We deny a certificate of appealability as to Hibbert’s claim
that the district court improperly denied his motion under Rule 60(b) of the Federal
Rules of Civil Procedure.
