DAVID DUGAN V. GARY SWARTHOUT, No. 11-16043 (9th Cir. 2017)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAR 17 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DAVID DWAYNE DUGAN, Petitioner-Appellant, No. 11-16043 D.C. No. 2:11-cv-00193-GEB v. MEMORANDUM* GARY SWARTHOUT, Warden, Respondent-Appellee. Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., District Judge, Presiding Submitted March 8, 2017** Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges. David Dwayne Dugan appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition challenging a 2009 decision by the Board of Parole Hearings denying parole and deferring his next parole hearing for five years in accordance with California Penal Code § 3041.5 (“Marsy’s Law”). We dismiss. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). This court issued a certificate of appealability (“COA”) on whether application of Marsy’s Law to delay Dugan’s next parole hearing for five years violates the Ex Post Facto Clause, and whether Dugan’s membership in a class action precludes his individual litigation of this claim in habeas. We vacate the COA as improvidently granted and dismiss this appeal for lack of jurisdiction. See Nettles v. Grounds, 830 F.3d 922, 934-35 (9th Cir. 2016) (en banc) (holding that claims fall outside “the core of habeas corpus” if success will not necessarily lead to immediate or earlier release from confinement), cert. denied, 580 U.S. __ (U.S. Jan. 9, 2017) (No. 16-6556); Phelps v. Alameda, 366 F.3d 722, 727-28, 730 (9th Cir. 2004) (merits panel has the power to rule on the propriety of a COA). The dismissal of this appeal does not preclude Dugan from pursuing conditions of confinement claims in a properly filed civil rights action under 42 U.S.C. § 1983. All pending motions are denied as moot. DISMISSED. 2 11-16043

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