Byron Hibbert v. A. P. Kane

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BYRON HIBBERT,
Petitioner - Appellant,
v.
A. P. KANE,
Respondent - Appellee.
No. 06-56839
D.C. No. 2:04-cv-00504-SJO
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted February 21, 2012**
Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
California state prisoner Byron Hibbert appeals pro se from the district
court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We dismiss.
Hibbert contends that the Board’s 2001 decision to deny him parole violated
his due process rights because it was not supported by “some evidence” of
FILED
FEB 23 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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dangerousness after he is deported. 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). Hibbert received all
of the process to which he was due. See id. at 862. Accordingly, a COA cannot
issue, and we dismiss the appeal for lack of jurisdiction. See 28 U.S.C.
§ 2253(c)(2).
Further, because Hibbert has not has made a substantial showing of the
denial of a constitutional right, we decline to certify his remaining claims. See id.
DISMISSED.

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