                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 08 2011

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




                            FOR THE NINTH CIRCUIT



LAWRENCE RAYBORN COWELL,                         No. 07-55923

               Petitioner - Appellant,           D.C. No. CV-06-00941-PSG

  v.
                                                 MEMORANDUM *
J. F. SALAZAR, Warden,

               Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                    Philip S. Gutierrez, District Judge, Presiding

                              Submitted May 24, 2011 **

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

       California state prisoner Lawrence Rayborn Cowell appeals from the district

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

       Cowell’s petition challenges the California Board of Parole Hearings’ (“the

Board”) 2006 decision to deny him parole. In an order filed on February 17, 2011,

          *
             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).
Cowell was ordered to show cause why summary affirmance of the district court’s

judgment is not appropriate in light of the Supreme Court’s decision in Swarthout

v. Cooke, 113 S. Ct. 859 (2011) (per curiam). Cowell elected to show cause, and

contends that Cooke does not foreclose habeas relief when the state action is

arbitrary and capricious. Cowell’s argument, however, is that the denial of parole

was arbitrary and capricious because the Board’s unsuitability findings were belied

by the record. Cooke forecloses this court from analyzing the sufficiency of the

evidence to support the Board’s decision. See id. at 863 (stating that the only

proper inquiry is what process the inmate received, not whether the state court

decided the case correctly).

      Because Cowell raises no procedural challenges regarding his parole

hearing, a certificate of appealability cannot issue, and we dismiss the appeal for

lack of jurisdiction. See 28 U.S.C. § 2253(c)(2); see also, Hayward v. Marshall,

603 F.3d 546, 554-55 (9th Cir. 2010) (en banc) (holding that a certificate of

appealability is required to challenge the denial of parole).

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

denial of a constitutional right, we decline to certify his remaining claims. See 28

U.S.C. § 2253(c)(2).




                                           2                                      07-55923
      Cowell has filed a motion to permit late filing of his response to the order to

show cause. Because his response was timely filed his motion is denied as moot.

      DISMISSED.




                                          3                                    07-55923
