                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 10 2011

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




                            FOR THE NINTH CIRCUIT



FRED SWANIGAN,                                   No. 07-56140

               Petitioner - Appellant,           D.C. No. CV-06-03681-DOC

  v.
                                                 MEMORANDUM *
ANTHONY P. KANE,

               Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     David O. Carter, District Judge, Presiding

                             Submitted March 8, 2011 **


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

       California state prisoner Fred Swanigan appeals pro se from the district

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




          *
             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).
      Swanigan contends that the Board’s 2005 decision to deny him parole 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 (“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, 862-63 (2011). Because Swanigan raises no procedural challenges, 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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