                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 11 2011

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




                            FOR THE NINTH CIRCUIT



ANTHONY MARTINEZ,                                No. 07-56219

               Petitioner - Appellant,           D.C. No. 5:05-cv-00045-AHM-
                                                 PLA
  v.

CHARLES HARRISON, Acting Warden,                 MEMORANDUM *

               Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                     A. Howard Matz, District Judge, Presiding

                             Submitted August 2, 2011 **

Before:        RYMER, IKUTA, and N.R. SMITH, Circuit Judges.

       California state prisoner Anthony Martinez appeals from the district court’s

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

       Martinez contends that the Governor’s 2004 reversal of the Board’s grant of

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).

      In his opening brief, Martinez does not raise any procedural challenges. In a

28(j) letter, however, he argues that Cooke does not foreclose his claims because it

did not address whether a right to parole arises in California under the United

States Constitution in the absence of some evidence of future danger. In a second

28(j) letter, Martinez argues his due process rights were violated because the

Governor did not hold a hearing before denying him parole. These issues are not

properly before us. See Pearson v. Muntz, 639 F.3d 1185, 1191 n.5 (9th Cir.

2011). In any event, Martinez’s contentions are foreclosed. See id. at 1191; Styre

v. Adams, __ F.3d __, 2011 WL 2176465, *1-2 (9th Cir. June 6, 2011).

      As there are no grounds for a COA to issue, we dismiss the appeal for lack

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

      DISMISSED.


                                          2                                      07-56219
