                                                                            FILED
                            NOT FOR PUBLICATION                               JUN 6 2011

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




                            FOR THE NINTH CIRCUIT



GARY ECCHER,                                     No. 07-55437

               Petitioner - Appellant,           D.C. No. CV-06-00842-RSWL

  v.
                                                 MEMORANDUM *
KATHY MENDOZA-POWERS,

               Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                    Ronald S.W. Lew, District Judge, Presiding

                              Submitted May 24, 2011 **

Before:        PREGERSON, THOMAS, and PAEZ, Circuit Judges.

       California state prisoner Gary Eccher appeals pro se from the district court’s

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

       Eccher contends that the Board’s 2003 decision to deny him parole was not

supported by “some evidence” and therefore violated his due process rights. After

          *
             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).
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). A COA cannot issue on Eccher’s contention that

the Board’s decision was not supported by “some evidence,” and we dismiss the

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

      Further, because Eccher has not has made a substantial showing of the denial

of a constitutional right, we decline to certify his remaining claims. Id.

      Appellee’s motion to dismiss the case is denied as moot.

      DISMISSED.




                                           2                                   07-55437
