No. 07-55437 D.C. No. CV-06-00842-RSWL
NOT FOR PUBLICATION
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Submitted May 24, 2011
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
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 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.