Lemieux v. Kane , 433 F. App'x 587 ( 2011 )

FILED
NOT FOR PUBLICATION MAY 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUY LEMIEUX, No. 06-16716
Petitioner - Appellant, D.C. No. CV-04-04774-MJJ
v.
MEMORANDUM*
A.P. KANE,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Martin J. Jenkins, District Judge, Presiding
Submitted March 14, 2011**
San Francisco, California
Before: HUG, W. FLETCHER, and M. SMITH, Circuit Judges.
Petitioner Guy Lemieux appeals the district court’s denial of his pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Lemieux was
sentenced in 1986 to 15 years to life for second-degree murder. Lemieux’s petition
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
claims that the California Board of Prison Terms (Parole Board or Board) violated
his federal due process rights when, in 2001, it found him unsuitable for parole for
the sixth time. The district court held that the Board’s denial was supported by
appropriate evidence. Because the remaining facts and procedural history are
familiar to the parties, we recite them here only as necessary to explain our
decision. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 2253(a)
and, in light of Swarthout v. Cooke, 131 S. Ct. 859 (2011) (per curiam), we affirm.
Petitioner has not obtained a certificate of appealability (COA) pursuant to
28 U.S.C. § 2253(c). At the time Petitioner applied for a COA, our case law was
such that it was unnecessary to obtain a COA for us to review a parole board’s
decision and, accordingly, Petitioner’s COA application was denied. See Rosas v.
Nielsen, 428 F.3d 1229, 1232 (9th Cir. 2005) (per curiam), overruled by Hayward
v. Marshall, 603 F.3d 546, 553–54 (9th Cir. 2010) (en banc). Because a certificate
is now required and because “[w]e may issue such a certificate sua sponte,”
Hayward, 603 F.3d at 554, we certify for appeal the issue of whether Lemieux was
denied parole in violation of his federal due process rights.
In Swarthout v. Cooke, the Supreme Court recognized that “[b]ecause the
only federal right at issue is procedural, the relevant inquiry is what process [a
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prisoner] received, not whether the state court decided the case correctly.” Id. at
863. Procedural due process is satisfied where the inmate “[is] allowed to speak at
[his] parole hearings and to contest the evidence against [him], [is] afforded access
to [his] records in advance, and [is] notified as to the reasons why parole was
denied.” Id. at 862. Such process was afforded here; on December 18, 2001, the
Board convened a hearing where Petitioner was represented by counsel, allowed to
speak and contest the evidence and given a written decision from the Board.
Although Petitioner asserts that the Parole Board’s decision was not supported by
“some evidence,” Cooke makes clear that such an argument is for the California
courts. Id.; see also Pearson v. Muntz, --- F.3d ----, 2011 WL 1238007, at *5 (9th
Cir. April 5, 2011).
Finally, Appellee’s motion for judicial notice of certain documents (Docket
No. 19) is denied.
AFFIRMED.
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