                                                                          FILED
                           NOT FOR PUBLICATION                             MAY 10 2011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
                                                Central District of California,
  v.                                            Riverside

T. E. VAUGHN, Warden,
                                                ORDER
              Respondent - Appellee.



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

       The petition for panel rehearing is GRANTED. The memorandum

disposition filed February 8, 2011 is withdrawn. A disposition is filed herewith.

       IT IS SO ORDERED.
                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 10 2011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. VAUGHN, 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. We affirm.

       While Kutylo has not obtained a certificate of appealability as required

under 28 U.S.C. y 2253(c), he did not need to, as the magistrate judge correctly



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
advised him that under Rosas v. Nielsen, 428 F.3d 1229, 1232 (9th Cir. 2005), a

COA is not required for review of a habeas denial of relief from a parole decision.

While we later 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, 131 S. Ct. 859, 862 (2011), we conclude that

Kutylo's federal right of due process was not violated by the Governor's decision

to reverse the California Board of Prison Terms' grant of parole, because Kutylo

was allowed an opportunity to be heard and was provided with a statement of the

reasons why parole was denied. In his petition for rehearing, Kutylo incorrectly

argues that Cooµe only addressed California law, and did not decide 'whether a

right arises in California under the United States Constitution to parole in the

absence of some evidence of future dangerousness.' But see Pearson v. Muntz, ---

F.3d ----, 2011 WL 1238007, at *5 (9th Cir. 2011) ('Cooµe was unequivocal in

holding that if an inmate seeµing parole receives an opportunity to be heard, a

notification of the reasons as to denial of parole, and access to their records in

advance, '[t]hat should . . . be [ ] the beginning and the end of [the] inquiry into




                                            2
whether [the inmate] received due process.'' (alterations and omission in original)

(quoting Cooµe, 131 S. Ct. at 862)).

      The petition for rehearing argues that we do not address two of Kutylo's

claims. Although both claims are meritless, we have granted Kutylo's petition to

explain why. Kutylo is not entitled to an evidentiary hearing on the alleged breach

of his plea agreement. Kutylo's claim is governed by 28 U.S.C. y 2254(d)(1), and

review of such cases 'is limited to the record that was before the state court that

adjudicated the claim on the merits.' Cullen v. Pinholster, 131 S. Ct. 1388, 1398

(2011).

      Kutylo's claim that the California Constitutional amendment providing for

gubernatorial review of parole decisions violates the Ex Post Facto Clause is

foreclosed by Johnson v. Gomez, 92 F.3d 964 (9th Cir. 1996).1

      Accordingly, we affirm the district court's denial of the habeas petition.

      AFFIRMED.




      1
       We expand the certificate of appealability to include this issue. See 9th Cir.
R. 22-1(e).

                                           3
