                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 10 2011

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




                            FOR THE NINTH CIRCUIT



ANDREW G. HARVEY,                                No. 09-15905

               Petitioner - Appellant,           D.C. No. 4:07-cv-00204-SBA

  v.
                                                 MEMORANDUM *
BEN CURRY, Warden,

               Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Northern District of California
                   Saundra B. Armstrong, District Judge, Presiding

                             Submitted March 8, 2011 **


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

       California state prisoner Andrew G. Harvey appeals pro se from the district

court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We dismiss.




          *
             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).
      Harvey contends that the Board’s 2004 decision to deny him parole was not

supported by “some evidence” and therefore violated his due 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, 862-63 (2011). Because Harvey raises no procedural challenges, a COA

cannot issue, and we dismiss the appeal for lack of jurisdiction. See 28 U.S.C.

§ 2253(c)(2).

      DISMISSED.




                                           2                                   09-15905
