                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 07 2011

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




                            FOR THE NINTH CIRCUIT



MARK MCGUIRE,                                    No. 08-16365

               Petitioner - Appellant,           D.C. No. 1:07-CV-00086-OWW-
                                                 GSA
  v.

KATHY MENDOZA-POWERS,                            MEMORANDUM *

               Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Oliver W. Wanger, District Judge, Presiding

                              Submitted May 24, 2011 **

Before:        PREGERSON, THOMAS, and PAEZ, Circuit Judges.

       California state prisoner Mark McGuire appeals pro se from the district

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

       McGuire contends that the Board’s 2004 decision to deny him parole was

not supported by “some evidence” and therefore violated his due process rights.

          *
             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).
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 McGuire raises no procedural

challenges regarding his parole hearing,1 a COA cannot issue, and we dismiss the

appeal for lack of jurisdiction. See 28 U.S.C. § 2253(c)(2).

      Further, because McGuire has not has made a substantial showing of the

denial of a constitutional right, we decline to certify his remaining claims. Id.

      DISMISSED.




      1
        To the extent that McGuire has preserved for appellate review the claim that
he was interrupted and precluded from finishing his “final statement” to the Board,
the record reflects that he was given an opportunity to be heard. See Cooke, 131 S.
Ct. at 862.

                                           2                                       08-16365
