DAN CARTER V. RONALD DAVIS, No. 12-16777 (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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAR 17 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DAVID CARTER, No. 12-16777 Petitioner-Appellant, D.C. No. 1:12-cv-00829-AWI v. MEMORANDUM* RONALD DAVIS, Acting Warden, Respondent-Appellee. Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding Submitted March 8, 2017** Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges. David Carter appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition challenging a 2010 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 Carter’s next parole hearing for five years violates the Ex Post Facto Clause. 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 Carter from pursuing conditions of confinement claims in a properly filed civil rights action under 42 U.S.C. § 1983. DISMISSED. 2 12-16777

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