Jesus Cecena v. R. Subia

FILED
NOT FOR PUBLICATION MAY 06 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS CECENA, No. 09-15713
Petitioner - Appellant, D.C. No. 2:07-cv-00344-LRS
v.
MEMORANDUM*
R. J. SUBIA, Warden; ATTORNEY
GENERAL OF THE STATE OF
CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lonny R. Suko, District Judge, Presiding
Argued and Submitted April 12, 2011
Pasadena, California
Before: REINHARDT, HAWKINS, and GOULD, Circuit Judges.
Jesus Cecena appeals the denial of his habeas petition challenging a 2006 parole
denial by the California Board of Parole Hearings. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Although Cecena did not previously seek or obtain a certificate of appealability
(“COA”), which is a requirement of 28 U.S.C. § 2253 jurisdiction, he was justified in
proceeding without one in reliance on then-existing precedent, since overruled. See
Hayward v. Marshall, 603 F.3d 546, 553-54 (9th Cir. 2010) (en banc), overruled on
other grounds by Swarthout v. Cooke, 131 S. Ct. 859 (2011). At the time he filed his
appeal, he made a “‘substantial showing of the denial of a constitutional right,’” and
we therefore issue a COA sua sponte nunc pro tunc. See id. at 555 (quoting 28 U.S.C.
§ 2253(c)(2)).
Since then, however, intervening Supreme Court authority has foreclosed
Cecena’s arguments for relief. Cecena does not dispute that he was afforded an
opportunity to speak and contest evidence against him at his parole hearing, given
notification of the reasons for parole denial, and provided advance access to his
records. Under Cooke, that must be “the end of the federal habeas courts’ inquiry into
whether [Cecena] received due process.” 131 S. Ct. at 862; Roberts v. Hartley, No.
10-15760, 2011 U.S. App. LEXIS 7434, at * 7-8 (9th Cir. Apr. 12, 2011) (“Stated
otherwise, there is no substantive due process right created by California’s parole
scheme.”); Pearson v. Muntz, No. 08-55728, 2011 U.S. App. LEXIS 6866, at *15-16
(9th Cir. Apr. 5, 2011). The federal “Constitution does not require more.” Greenholtz
v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 16 (1979).
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Finally, Cecena argues that the California Court of Appeal denied him
procedural due process by relying upon factors to deny his petition for state habeas
relief that were not relied upon by the Board. We need not decide in this case,
however, whether due process prohibits a state court from affirming a parole board’s
determination on alternative grounds, or whether the state court must at least afford
a petitioner the opportunity to respond to the new grounds before relying upon them.
Here, the state court did not actually rely upon alternative bases. Rather, the court
merely recited, correctly, various facts that “[t]he record shows the Board considered”
and that “[t]he Board noted.” The court does not assert that those facts were the
specific factors relied upon by the Board in denying parole, nor does the court say that
those facts provide the reason why the court denied habeas relief. Instead, the only
operative language in the state court opinion is, “The Board considered the proper
factors in an individualized manner. Some evidence supports the Board’s decision.”
Accordingly, Cecena was not denied due process in the state courts’ consideration of
his habeas petition.
AFFIRMED.
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