Eccher v. Mendoza-Powers , 435 F. App'x 698 ( 2011 )

FILED
NOT FOR PUBLICATION JUN 6 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GARY ECCHER, No. 07-55166
Petitioner - Appellant, D.C. No. CV-06-00741-RSWL
v.
MEMORANDUM *
KATHY MENDOZA-POWERS,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Submitted May 24, 2011 **
Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
California state prisoner Gary Eccher appeals pro se from the district court’s
judgment denying his 28 U.S.C. § 2254 habeas petition. We dismiss.
*
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).
Eccher contends that the Board’s 2005 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, 131 S.
Ct. 859, 863 (2011) (per curiam). A COA cannot issue on Eccher’s contention that
the Board’s decision was not supported by “some evidence,” and we dismiss the
appeal for lack of jurisdiction. See 28 U.S.C. § 2253(c)(2).
Further, because Eccher has not has made a substantial showing of the denial
of a constitutional right, we decline to certify his remaining claims. Id.All pending motions are denied.
DISMISSED.
2 07-55166