                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 21 2012

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




                            FOR THE NINTH CIRCUIT



DAVID LEON DEW,                                  No. 07-17208

              Petitioner - Appellant,            D.C. No. CV-07-01818-PJH

  v.
                                                 MEMORANDUM *
BEN CURRY,

              Respondent - Appellee,

  and

BOARD OF PAROLE and ARNOLD
SCHWARZENEGGAR,

              Real-party-in-interest.



                   Appeal from the United States District Court
                      for the Northern District of California
                   Phyllis J. Hamilton, District Judge, Presiding

                             Submitted May 15, 2012 **




        *
             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).
Before:      CANBY, GRABER, and M. SMITH, Circuit Judges.

      California state prisoner David Leon Dew appeals from the district court’s

judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction

under 28 U.S.C. § 2253, and we affirm.

      Dew contends that the Board of Parole Hearings’s (Board) 2005 decision

finding him unsuitable for parole was not supported by “some evidence” and

therefore violated his due process rights. This claim is foreclosed. See Swarthout

v. Cooke, 131 S. Ct. 859, 862-63 (2011) (per curiam).

      Dew also contends that title 15, section 2402(c)(1) of the California Code of

Regulations is unconstitutionally vague as applied to the determination that he was

unsuitable for parole in 2005. This claim is also not cognizable on federal habeas

review. See Swarthout, 131 S. Ct. at 862-63.

      Finally, Dew contends that the Board breached the terms of his plea

agreement by refusing to grant him parole in 2005. Dew has not demonstrated that

he was promised parole under the plea agreement. The state court’s determination

that the Board did not breach the plea agreement was not contrary to, or an

unreasonable application of clearly established federal law as determined by the

Supreme Court, nor based on an unreasonable determination of the facts in light of




                                         2                                    07-17208
the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d);

Penry v. Johnson, 532 U.S. 782, 792-93 (2001).

      AFFIRMED.




                                         3                                  07-17208
