Kutylo v. Vaughan

Opinion

FILED

NOT FOR PUBLICATION FEB 08 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

STEVEN ERNEST KUTYLO, No. 07-55829 Petitioner - Appellant, D.C. No. CV-06-00099-VBF

v.

MEMORANDUM *

T. E. VAUGHAN, Warden,

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California Valerie Baµer Fairbanµ, District Judge, Presiding

Argued and Submitted August 5, 2010 Pasadena, California

Before: KOZINSKI, Chief Judge, REINHARDT and WARDLAW, Circuit Judges.

Steven Kutylo appeals the denial of his petition for a writ of habeas corpus.

We have jurisdiction under 28 U.S.C. y 2553.

While Kutylo has not obtained a certificate of appealability as required under 28 U.S.C. y 2253(c), he was correctly advised before he filed his petition

*

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

that under Rosas v. Nielsen, 428 F.3d 1229, 1232 (9th Cir. 2005), he did not need a COA. While we overruled this aspect of Rosas in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc), '[w]e may issue such a certificate sua sponte,' id. at 554. We therefore certify for appeal the issue of whether Kutylo was denied parole in violation of his federal right to due process.

In light of Swarthout v. Cooµe, 562 U.S. ----, ----, 2011 WL 197627, at *2 (2011), we conclude that Kutylo's federal right of due process was not violated, because he was allowed an opportunity to be heard and was provided with a statement of the reasons why parole was denied. Accordingly, we affirm the district court's denial of his habeas petition.

AFFIRMED.

FILED

Kutylo v. Vaughn, No. 07-55829 FEB 08 2011

MOLLY C. DWYER, CLERK

REINHARDT, Circuit Judge, concurring: U.S . CO U RT OF AP PE A LS

Because the Supreme Court has held that whether there is 'some evidence'

to support a denial of parole, a right that California law affords inmates,1 is 'no part of the Ninth Circuit's business,' Swarthout v. Cooµe, No. 10-333, Slip Op. at 6 (Jan. 24, 2011), and for that reason only, I reluctantly concur.

1 S ee, e.g., In re Lawrence, 44 Cal. 4th 1181, 1191 (Cal. 2008).