DAVID CARTER v. RONALD DAVIS (2017)

MEMORANDUM*

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 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.