Wagoner v. Carey

Court of Appeals for the Ninth Circuit · 07-55899 · 2010-09-29 · Unpublished

Keith WAGONER, Petitioner-Appellant, v. Tom L. CAREY, Warden, Respondent-Appellee

Area: other
Panel: Barry G. Silverman (author), Smith, Consuelo M. Callahan

Analysis

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Opinion

FILED NOT FOR PUBLICATION SEP 29 2010

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

KEITH WAGONER, No. 07-55899 Petitioner - Appellant, D.C. No. CV-05-06142-GHK v. MEMORANDUM * TOM L. CAREY, Warden, Respondent - Appellee.

Appeal from the United States District Court for the Southern District of California George H. King, District Judge, Presiding Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

California state prisoner Keith Wagoner appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have * 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). jurisdiction under 28 U.S.C. § 2253,1 and we affirm.

Wagoner contends that the Board of Parole Hearings’ 2004 decision to deny him parole violated his due process rights. In light of Wagoner’s recent serious disciplinary infraction, the state court did not unreasonably conclude that some evidence supports the Board’s decision. See 28 U.S.C. § 2254(d); see also Hayward v. Marshall, 603 F.3d 546, 563 (9th Cir. 2010) (en banc).

Wagoner’s requests for oral argument and judicial notice are denied.

AFFIRMED.

1 We certify for appeal, on our own motion, the issue of whether some evidence of current dangerousness supported the California Board of Parole Hearings’ 2004 decision to deny parole. See Hayward v. Marshall, 603 F.3d 546, 554-55 (9th Cir. 2010) (en banc). We decline to certify for appeal Wagoner’s remaining contentions. See 28 U.S.C. § 2253(c)(2) (certificate of appealability requires “substantial showing of the denial of a constitutional right”).

2 07-55899