Cowell v. Salazar

FILED
NOT FOR PUBLICATION JUN 08 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LAWRENCE RAYBORN COWELL, No. 07-55923
Petitioner - Appellant, D.C. No. CV-06-00941-PSG
v.
MEMORANDUM *
J. F. SALAZAR, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted May 24, 2011 **
Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
California state prisoner Lawrence Rayborn Cowell appeals from the district
court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We dismiss.
Cowell’s petition challenges the California Board of Parole Hearings’ (“the
Board”) 2006 decision to deny him parole. In an order filed on February 17, 2011,
*
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).
Cowell was ordered to show cause why summary affirmance of the district court’s
judgment is not appropriate in light of the Supreme Court’s decision in Swarthout
v. Cooke, 113 S. Ct. 859 (2011) (per curiam). Cowell elected to show cause, and
contends that Cooke does not foreclose habeas relief when the state action is
arbitrary and capricious. Cowell’s argument, however, is that the denial of parole
was arbitrary and capricious because the Board’s unsuitability findings were belied
by the record. Cooke forecloses this court from analyzing the sufficiency of the
evidence to support the Board’s decision. See id. at 863 (stating that the only
proper inquiry is what process the inmate received, not whether the state court
decided the case correctly).
Because Cowell raises no procedural challenges regarding his parole
hearing, a certificate of appealability cannot issue, and we dismiss the appeal for
lack of jurisdiction. See 28 U.S.C. § 2253(c)(2); see also, Hayward v. Marshall,
603 F.3d 546, 554-55 (9th Cir. 2010) (en banc) (holding that a certificate of
appealability is required to challenge the denial of parole).
Further, because Cowell has not has made a substantial showing of the
denial of a constitutional right, we decline to certify his remaining claims. See 28
U.S.C. § 2253(c)(2).
2 07-55923
Cowell has filed a motion to permit late filing of his response to the order to
show cause. Because his response was timely filed his motion is denied as moot.
DISMISSED.
3 07-55923