Opinion
No. 08-16610 D.C. No. 3:07-cv-02491-CRB
08-16-2011
ISIDRO F. DELUNA, Petitioner - Appellant, v. BEN CURRY, Warden, Respondent - Appellee.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Before: THOMAS, SILVERMAN, and CLIFTON, Circuit Judges.
California state prisoner Isidro F. DeLuna appeals pro se from the district court's judgment denying his 28 U.S.C. § 2254 petition. We dismiss.
DeLuna contends that the Board of Prison Terms' 2005 decision to deny him parole was not supported by "some evidence" and therefore violated his due process rights. After the 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 when there is a liberty interest in parole 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). Because DeLuna raises no procedural challenges regarding his parole hearing, a COA may not issue on this claim. See 28 U.S.C. § 2253(c)(2).
Further, because DeLuna has not made a substantial showing of the denial of a constitutional right on his other claims, we also decline to certify those claims. See 28 U.S.C. § 2253(c)(2).
Because there is no COA, we dismiss the appeal for lack of jurisdiction. See 28 U.S.C. § 2253(c)(1).
DISMISSED.