                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 26 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 DEMETRIUS BORSTAD,                              No.    10-15412

                 Petitioner-Appellant,           D.C. No. 5:09-cv-03756-JW

   v.
                                                 ORDER *
 J. HARTLEY, Warden,

                 Respondent-Appellee.

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



 TONY EUGENE SAFFOLD, AKA Tony                   No.    11-16355
 Eugene fSaffold,
                                                 D.C. No.
                 Petitioner-Appellant,           1:10-cv-01295-OWW-MJS

   v.

 RICK HILL, Warden,

                 Respondent-Appellee.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
RENO FUENTES RIOS,                       No.   11-16570

           Petitioner-Appellant,         D.C. No. 1:11-cv-00667-GSA

 v.

WARDEN OF CSP-CORCORAN,

           Respondent-Appellee.

             Appeal from the United States District Court
                 for the Eastern District of California
          Oliver W. Wanger, Senior District Judge, Presiding
             Gary S. Austin, Magistrate Judge, Presiding



ERIC WICKLIFFE,                          No.   11-17842

           Petitioner-Appellant,         D.C. No.
                                         2:11-cv-02172-MCE-GGH
 v.

GARY SWARTHOUT, Warden and
BOARD OF PAROLE HEARINGS,

           Respondents-Appellees.

            Appeal from the United States District Court
                for the Eastern District of California
            Morrison C. England Jr., District Judge, Presiding
HUBERT PETRICH,                          No.   11-55308

           Petitioner-Appellant,         D.C. No.
                                         5:10-cv-01661-DSF-E
 v.

TERRI GONZALEZ, Warden,


                                   2
                  Respondent-Appellee.

                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                      Argued and Submitted August 12, 2013
                       Submission Vacated April 30, 2015
                          Resubmitted August 26,2016
                            San Francisco, California

Before: REINHARDT, NOONAN, and HURWITZ, Circuit Judges.


      These cases involve challenges to Proposition 9, The Victims’ Bill of Rights

Act of 2008 (“Marsy’s Law”), see Cal. Const. art. I, § 28; Cal Penal Code

§§ 679.026, 3041.5, 3043, 3044, by California prisoners serving indeterminate life

sentences with the possibility of parole. Argument in each case was heard on August

12, 2013, and submission was vacated in each case on April 30, 2015, pending this

Court’s decision in Gilman v. Brown, No. 14-15613. In the wake of our opinions in

Gilman v. Brown, 814 F.3d 1007 (9th Cir. 2016), and Nettles v. Grounds, No. 12-

16935, 2016 WL 4072465 (9th Cir. 2016) (en banc), we today resubmit these cases

for decision. We have jurisdiction under 28 U.S.C. § 2253, and vacate and remand

for identical reasons in each case.

      1. In each of these cases, petitioners sought habeas corpus relief under 28

U.S.C. § 2254, arguing that as applied Marsy’s Law violates the Ex Post Facto


                                         3
Clause, U.S. Const. Art. I, §§ 9, 10, by impermissibly advancing the dates for parole

hearings. None of the petitioners’ claims lies at “the core of habeas corpus,” because

petitioners do not challenge the “validity of any confinement or . . . the particulars

affecting its duration,” Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam),

but rather only the timing of each petitioner’s next parole hearing. Success on the

petitioners’ claims would not necessarily result in a shortening of their sentences.

Thus, the district court in each case lacked jurisdiction to grant 28 U.S.C. § 2254

habeas relief. Nettles, 2016 WL 4072465, at *10 (“[A] § 1983 action is the exclusive

vehicle for claims brought by state prisoners that are not within the core of habeas

corpus.”). The judgments below on the merits of petitioners’ constitutional claims

therefore are vacated.

      2. On remand, petitioners should be afforded leave to amend their petitions

to assert claims under 42 U.S.C. § 1983. Id. (“[A] district court may construe a

petition for habeas corpus to plead a cause of action under § 1983 after notifying and

obtaining informed consent from the prisoner.”).

      3. If any petitioner chooses to amend, the district court should determine in

the first instance the impact of Gilman on his claims.

   VACATED AND REMANDED. Each party shall bear their own costs.

      In No. 10-15412, Borstad’s “Motion to Submit Uncertified Issues on Appeal

and on the Grounds of Jurisdiction,” Dkt. No. 5, is DENIED.


                                          4
      In No. 10-15412, Borstad’s “Motion to Submit Intervening United States

Supreme Court Law in Support of Request for Certificate of Appealability,” Dkt.

No. 6, is DENIED.

      In No. 10-15412, Borstad’s “Request for Judicial Notice,” Dkt. No. 28, is

GRANTED.

      In No. 11-16355, Appellee’s “Request for Judicial Notice,” Dkt. No. 35, is

GRANTED.

      In No. 11-16355, Saffold’s “Motion for Judicial Notice,” Dkt. No. 41, is

GRANTED.

      In No. 11-16355, Appellee’s “Request for Judicial Notice,” Dkt. No. 58, is

GRANTED.

      In No. 11-16355, Saffold’s “Motion for Order Remanding Matter to District

Court” in Saffold v. Hill, No. 11-16355, Dkt. No. 86, is DENIED without prejudice

to renewing the request for consolidation in the district court.

      In No. 11-16570, Rios’s “Request for Judicial Notice of Evidentiary Hearing

and Transcript,” Dkt. No. 16, is GRANTED.

      In No. 11-16570, Appellee’s “Request for Judicial Notice,” Dkt. No. 44, is

GRANTED.

      In No. 11-55308, Appellee’s “Motion to Substitute Party,” Dkt. No. 4, is

GRANTED.


                                           5
     In No. 11-55308, Petrich’s “Request for Judicial Notice of Transcript,” Dkt.

No. 15, is GRANTED.

     In No. 11-55308, Amicus Curiae’s “Notice,” Dkt. No. 47, is DENIED.

     In No. 11-55308, Appellee’s “Request for Judicial Notice,” Dkt. No. 49, is

GRANTED.




                                       6
