                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 27 2011

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




                            FOR THE NINTH CIRCUIT



DEXTER E. DALE,                                  No. 08-55291

               Petitioner - Appellant,           D.C. No. CV-06-00438-GHK

  v.
                                                 MEMORANDUM *
A. P. KANE,

               Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     George H. King, District Judge, Presiding

                              Submitted June 15, 2011 **

Before:        CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

       California state prisoner Dexter E. Dale appeals pro se from the district

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

       Dale contends that the Board of Prison Terms’ 2005 decision to deny him

parole was not supported by “some evidence” and therefore violated his due

          *
             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).
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, 863 (2011) (per curiam). Because Dale raises no procedural challenges

regarding his parole hearing, a COA cannot issue, and we dismiss the appeal for

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

      DISMISSED.




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