                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 18 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


GUY LEMIEUX,                                     No. 06-16716

              Petitioner - Appellant,            D.C. No. CV-04-04774-MJJ

  v.
                                                 MEMORANDUM*
A.P. KANE,

              Respondent - Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Martin J. Jenkins, District Judge, Presiding

                            Submitted March 14, 2011**
                             San Francisco, California

Before: HUG, W. FLETCHER, and M. SMITH, Circuit Judges.

       Petitioner Guy Lemieux appeals the district court’s denial of his pro se

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Lemieux was

sentenced in 1986 to 15 years to life for second-degree murder. Lemieux’s petition


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
claims that the California Board of Prison Terms (Parole Board or Board) violated

his federal due process rights when, in 2001, it found him unsuitable for parole for

the sixth time. The district court held that the Board’s denial was supported by

appropriate evidence. Because the remaining facts and procedural history are

familiar to the parties, we recite them here only as necessary to explain our

decision. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 2253(a)

and, in light of Swarthout v. Cooke, 131 S. Ct. 859 (2011) (per curiam), we affirm.



      Petitioner has not obtained a certificate of appealability (COA) pursuant to

28 U.S.C. § 2253(c). At the time Petitioner applied for a COA, our case law was

such that it was unnecessary to obtain a COA for us to review a parole board’s

decision and, accordingly, Petitioner’s COA application was denied. See Rosas v.

Nielsen, 428 F.3d 1229, 1232 (9th Cir. 2005) (per curiam), overruled by Hayward

v. Marshall, 603 F.3d 546, 553–54 (9th Cir. 2010) (en banc). Because a certificate

is now required and because “[w]e may issue such a certificate sua sponte,”

Hayward, 603 F.3d at 554, we certify for appeal the issue of whether Lemieux was

denied parole in violation of his federal due process rights.

      In Swarthout v. Cooke, the Supreme Court recognized that “[b]ecause the

only federal right at issue is procedural, the relevant inquiry is what process [a


                                           2
prisoner] received, not whether the state court decided the case correctly.” Id. at

863. Procedural due process is satisfied where the inmate “[is] allowed to speak at

[his] parole hearings and to contest the evidence against [him], [is] afforded access

to [his] records in advance, and [is] notified as to the reasons why parole was

denied.” Id. at 862. Such process was afforded here; on December 18, 2001, the

Board convened a hearing where Petitioner was represented by counsel, allowed to

speak and contest the evidence and given a written decision from the Board.

Although Petitioner asserts that the Parole Board’s decision was not supported by

“some evidence,” Cooke makes clear that such an argument is for the California

courts. Id.; see also Pearson v. Muntz, --- F.3d ----, 2011 WL 1238007, at *5 (9th

Cir. April 5, 2011).

      Finally, Appellee’s motion for judicial notice of certain documents (Docket

No. 19) is denied.

      AFFIRMED.




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