David Leon Dew v. Ben Curry

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NOT FOR PUBLICATION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
DAVID LEON DEW,
Petitioner - Appellant,
v.
BEN CURRY,
Respondent - Appellee,
and
BOARD OF PAROLE and ARNOLD
SCHWARZENEGGAR,
Real-party-in-interest.
No. 07-17208
D.C. No. CV-07-01818-PJH
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted May 15, 2012**
FILED
MAY 21 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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07-17208 2
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
California state prisoner David Leon Dew appeals from the district court’s
judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction
under 28 U.S.C. § 2253, and we affirm.
Dew contends that the Board of Parole Hearings’s (Board) 2005 decision
finding him unsuitable for parole was not supported by “some evidence” and
therefore violated his due process rights. This claim is foreclosed. See Swarthout
v. Cooke, 131 S. Ct. 859, 862-63 (2011) (per curiam).
Dew also contends that title 15, section 2402(c)(1) of the California Code of
Regulations is unconstitutionally vague as applied to the determination that he was
unsuitable for parole in 2005. This claim is also not cognizable on federal habeas
review. See Swarthout, 131 S. Ct. at 862-63.
Finally, Dew contends that the Board breached the terms of his plea
agreement by refusing to grant him parole in 2005. Dew has not demonstrated that
he was promised parole under the plea agreement. The state court’s determination
that the Board did not breach the plea agreement was not contrary to, or an
unreasonable application of clearly established federal law as determined by the
Supreme Court, nor based on an unreasonable determination of the facts in light of

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07-17208 3
the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d);
Penry v. Johnson, 532 U.S. 782, 792-93 (2001).
AFFIRMED.

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