Martinez v. Harrison

MEMORANDUM ** California state prisoner Anthony Martinez appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We dismiss. Martinez contends that the Governor’s 2004 reversal of the Board’s grant of 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, 863, 178 L.Ed.2d 732 (2011) (per curiam). In his opening brief, Martinez does not raise any procedural challenges. In a 28(j) letter, however, he argues that Cooke does not foreclose his claims because it did not address whether a right to parole arises in California under the United States Constitution in the absence of some evidence of future danger. In a second 28(j) letter, Martinez argues his due process rights were violated because the Governor did not hold a hearing before denying him parole. These issues are not properly before us. See Pearson v. Muntz, 639 F.3d *890 1185, 1191 n. 5 (9th Cir.2011). In any event, Martinez’s contentions are foreclosed. See id. at 1191; Styre v. Adams, 645 F.3d 1106, 1108-09 (9th Cir.2011). As there are no grounds for a COA to issue, we dismiss the appeal for lack of jurisdiction. See 28 U.S.C. § 2253(c)(2). DISMISSED. Footnotes [**] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.