                                                                           FILED
                            NOT FOR PUBLICATION                            AUG 22 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MICHAEL ROY JOHNSON,                             No. 11-17321

               Petitioner - Appellant,           D.C. No. 1:10-cv-01164-SMS

  v.
                                                 MEMORANDUM*
CLAY, Warden,

               Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Eastern District of California
                   Sandra M. Snyder, Magistrate Judge, Presiding

                            Submitted February 6, 2013**

Before:        HUG, FARRIS, and LEAVY, Circuit Judges.

       Michael Roy Johnson appeals pro se from the district court’s denial of his 28

U.S.C. § 2241 habeas petition challenging the United States Parole Commission’s

(“USPC”) repeated denial of parole.



          *
             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).
      Because Johnson is challenging a detention arising out of “process issued by

a State court,” this appeal requires a certificate of appealability (“COA”). 28

U.S.C. § 2253(c)(1)(A); see also Madley v. United States Parole Commission, 278

F.3d 1306, 1310 (D.C. Cir. 2002) (the Superior Court of the District of Columbia

qualifies as a state court under 28 U.S.C. § 2253(c)(1)(A)); Hayward v. Marshall,

603 F.3d 546, 552-54 (9th Cir. 2010) (en banc) (overruled on other grounds by

Swarthout v. Cooke, 131 S. Ct. 859 (2011)) (habeas challenge to parole decision

requires a COA when underlying conviction and sentence issued from a state

court). We grant a COA. Reviewing de novo, Close v. Thomas, 653 F.3d 970, 973

(9th Cir. 2011), we affirm.

      Johnson contends that the USPC’s application of amended parole guidelines

at his 2000, 2005, and 2008 parole hearings violated the Ex Post Facto Clause.

However, any ex post facto violation that arose out of the USPC’s application of

the amended guidelines has been cured by the USPC’s decision to apply the 1987

guidelines at Johnson’s 2010 parole hearing and at future hearings. See 28 C.F.R.

§ 2.80(o); Weaver v. Maass, 53 F.3d 956, 959-60 (9th Cir. 1995).

      Johnson’s due process claims fail because the D.C. parole regulations do not

give rise to a protected liberty interest. See Swarthout v. Cooke, 131 S. Ct. 859,

861 (2011); Ellis v. District of Columbia, 84 F.3d 1413, 1420 (D.C. Cir. 1996).


                                          2                                       11-17321
Moreover, the USPC did not act arbitrarily in denying parole to Johnson. See

Benny v. United States Parole Commission, 295 F.3d 977, 981-82 (9th Cir. 2002).

      The district court did not abuse its discretion in failing to rule on Johnson’s

motion to amend because amendment would have been futile. See Plumeau v.

School Dist. No. 40 County of Yamhill, 130 F.3d 432, 439 & n.5 (9th Cir. 1997).

      Johnson’s motion to strike is denied.

      AFFIRMED.




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