                                                                           FILED
                            NOT FOR PUBLICATION                             APR 11 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      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
