Opinion
No. CIV S-05-2601 MCE CHS P
10-14-2011
MARCUS JAMES SMITH, Petitioner, v. CLAUDE E. FINN, et al., Respondents.
ORDER
Smith's petition for writ of habeas corpus was denied and judgment entered on November 20, 2009. Smith filed a timely notice of appeal; however, it appears that due to clerical error, the appeal was not processed at that time. In the meantime, the United States Court of Appeals for the Ninth Circuit held that a certificate of appealability is required to challenge the denial of parole. See Hayward v. Marshall, 603 F.3d 546, 554-55 (9th Cir. 2010). A certificate of appealability may issue where "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Following entry of judgment in this case, the Supreme Court 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. See Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011) (per curiam). Because Smith raises no procedural challenge regarding his parole hearing, the court must decline to issue a certificate of appealability.
Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED THAT a certificate of appealability shall not issue in this case.
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE