                                                                         FILED
                    UNITED STATES COURT OF APPEALS                       JAN 28 2011

                                                                    MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                     U.S . CO U RT OF AP PE A LS




MITCHELL SMILEY,                              No. 06-55727

              Petitioner - Appellant,         D.C. No. CV-05-01230-NAJ
                                              Southern District of California,
  v.                                          San Diego

ROBERT J. HERNANDEZ, Warden,
                                              ORDER
              Respondent - Appellee.



Before: B. FLETCHER, McKEOWN, and BYBEE, Circuit Judges.

       The memorandum disposition filed on January 24, 2011, is hereby

withdrawn.
                                                                             FILED
                            NOT FOR PUBLICATION                               JAN 28 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



MITCHELL SMILEY,                                  No. 06-55727

              Petitioner - Appellant,             D.C. No. CV-05-01230-NAJ

  v.
                                                  MEMORANDUM *
ROBERT J. HERNANDEZ, Warden,

              Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Southern District of California
                    Napoleon A. Jones, District Judge, Presiding

                       Argued and Submitted April 13, 2007
                               Pasadena, California

Before: B. FLETCHER, McKEOWN, and BYBEE, Circuit Judges.

       Mitchell Smiley, a California state prisoner, appeals from the district court's

denial of his petition for a writ of habeas corpus filed under 28 U.S.C. y 2254.

Smiley alleges the California Board of Parole Hearings ('Board') violated his due




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
process rights in denying him parole in 2004. We have jurisdiction under 28

U.S.C. y 2253,1 and we affirm.

      Smiley contends the Board's 2004 decision denying him parole fails

California's 'some evidence' standard and should be set aside. We may grant a

writ of habeas corpus to a state prisoner 'only on the ground that he is in custody

in violation of the Constitution or laws or treaties of the United States.' 28 U.S.C.

y 2254(a). Because '[t]here is no right under the Federal Constitution to be

conditionally released before the expiration of a valid sentence, and the States are

under no duty to offer parole to their prisoners,' we may review only whether the

California-created liberty interest in parole satisfies the 'minimal' procedural

requirements of the Due Process Clause. Swarthout v. Cooµe, 562 U.S. ---, 2011

WL 197627, at *2 (2011) (per curiam). In other words, '[b]ecause the only federal

right at issue is procedural, the relevant inquiry is what process [Smiley] received,

not whether the state court decided the case correctly.' Id. at *3.

      Here, as in Swarthout, Smiley received adequate process: he was allowed to

contest the evidence against him, he was allowed to speaµ at his parole hearing, he

was afforded access to review his file, and he was notified as to the reasons why


      1
       We certify for appeal, on our own motion, the issue of whether the Board's
2004 decision denying parole violated due process. See Hayward v. Marshall, 603
F.3d 546, 554-55 (9th Cir. 2010) (en banc).

                                          2
parole was denied. See id. at *2. Accordingly, we affirm the district court's denial

of Smiley's petition.

      AFFIRMED.




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