                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 16 2011

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




                            FOR THE NINTH CIRCUIT



GARY SMITH,                                      No. 08-15587

               Petitioner - Appellant,           D.C. No. 06-CV-01830-CW

  v.
                                                 MEMORANDUM *
A. P. KANE, Warden; JAMES DAVIS,
Chairman, Board of Parole Hearings,

               Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Claudia A. Wilken, District Judge, Presiding

                             Submitted March 8, 2011 **

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

       California state prisoner Gary Smith appeals pro se from the district court’s

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

       Smith contends that the Board of Prison Terms’ 2003 decision to deny him


          *
             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).
parole for five years 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 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 (2011) (per curiam). Because Smith raises no procedural challenges

regarding his parole hearing, a certificate of appealability cannot issue. Further,

because Smith has not made a substantial showing of the denial of a constitutional

right, we decline to certify the remaining claims. See 28 U.S.C. § 2253(c).

      DISMISSED.




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