                                                                            FILED
                           NOT FOR PUBLICATION                              MAR 14 2017

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



                            FOR THE NINTH CIRCUIT


ANTHONY CHARLES ALTO,                            No. 11-16431

              Petitioner-Appellant,              D.C. No. 5:11-cv-00632-JW

 v.
                                                 MEMORANDUM*
RONALD DAVIS, Acting Warden,

              Respondent-Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                      James Ware, District Judge, Presiding

                            Submitted March 8, 2017**

Before:      LEAVY, W. FLETCHER, and OWENS, Circuit Judges.

      Anthony Charles Alto 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 for



      *
             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).
ten 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 Alto’s next parole hearing for ten 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 Alto from pursuing

conditions of confinement claims in a properly filed civil rights action under 42

U.S.C. § 1983.

      We treat Alto’s additional argument as a motion to expand the COA. So

treated, the motion is denied. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d

1098, 1104-05 (9th Cir. 1999).

      All pending motions are denied as moot.

      DISMISSED.


                                          2                                    11-16431
