Dennis Garbutt v. Thomas Carey

FILED
NOT FOR PUBLICATION DEC 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DENNIS GARBUTT, No. 08-17545
Petitioner - Appellant, D.C. No. 2:05-cv-02130-GEB-KJM
v.
MEMORANDUM *
THOMAS L. CAREY, Warden; et al.,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE and McKEOWN, Circuit Judges.
California state prisoner Dennis Garbutt appeals pro se 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.
Garbutt contends that the Board’s 2004 decision to deny him parole was not
supported by “some evidence” and therefore violated his due process rights. The
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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. Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011); Roberts v. Hartley,
640 F.3d 1042, 1045-47 (9th Cir. 2011) (applying Cooke). Because Garbutt raises
no procedural challenges, we affirm.
We decline to expand the certificate of appealability to include Garbutt’s
uncertified claim that he was deprived of the benefits of his plea agreement as a
result of the Board’s decision finding him unsuitable for parole. See 28 U.S.C.
§ 2253(c)(2); 9th Cir. R. 22-1(e).
AFFIRMED.
2 08-17545