DocketNumber: 07-55829
Filed Date: 2/8/2011
Status: Non-Precedential
Modified Date: 4/17/2021
FILED NOT FOR PUBLICATION FEB 08 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S .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. 2 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).