Opinion
No. 11-16437
03-14-2017
DENNIS L. HAMILTON, Petitioner-Appellant, v. BOARD OF PAROLE HEARINGS and Neil McDowell, Warden, Respondents-Appellees.
NOT FOR PUBLICATION
D.C. No. 1:10-cv-01972-OWW MEMORANDUM Appeal from the United States District Court for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Dennis L. Hamilton appeals pro se 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 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 Hamilton's next parole hearing 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 Hamilton 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.