
    Somboon Timme PHAYMANY, Petitioner—Appellant, v. Don TAYLOR, Warden, Respondent—Appellee.
    No. 03-55386.
    United States Court of Appeals, Ninth Circuit.
    Submitted June 22, 2004.
    
    Decided June 25, 2004.
    Somboon Timme Phaymany, Blythe, CA, pro se.
    
      Benjamin P. Lechman, Esq., San Diego, CA, for Petitioner-Appellant.
    Teresa Torreblanca, Office of the California Attorney General, San Diego, CA, for Respondent-Appellee.
    Before KOZINSKI, SILVERMAN, Circuit Judges, and WEINER, Senior Judge.
    
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
    
      
       The Honorable Charles R. Weiner, Senior United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
    
   MEMORANDUM

The certificate of appealabihty (COA) is broadened to include the following issue: Whether, in light of Kelly v. Small, 315 F.3d 1063, 1066-67 (9th Cir.2003), and Baldwin v. Reese, — U.S. -, ---, 124 S.Ct. 1347, 1351-52, 158 L.Ed.2d 64 (2004), appellant exhausted his state remedies as to his claim that his conviction on a vicarious liability theory violated his right to due process.

Because the parties agree that the claim was exhausted under Kelly, see Appellant’s Opening Brief at 29-32; Appellee’s Brief at 36-37, and petitioner labeled his claims as federal sufficiently for purposes of Baldwin, the case is remanded to the district court for litigation on the merits of that claim.

After such litigation, the other issues already included in this COA will continue to be appealable without the need for a new COA.

REMANDED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     