                                                                            FILED
                           NOT FOR PUBLICATION                              MAR 17 2017

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DAVID DWAYNE DUGAN,                              No. 11-16043

              Petitioner-Appellant,              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
