Gary Smith v. A. Kane

MEMORANDUM

California state prisoner Juan Manuel Chavez appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We dismiss.

The stay of this case is lifted because a decision has been filed in Hayward v. Marshall, 603 F.3d 546 (9th Cir.2010) (en banc).

Chavez contends that the Board’s 2002 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, — U.S. -, ---, 131 S.Ct. 859, 862-63 , 178 L.Ed.2d 732 (2011). Because Chavez raises no procedural challenges regarding his parole hearing, a COA cannot issue. Further, because Chavez has not has made a substantial showing of the denial of a constitutional right, we decline to…