                                                                            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                           NOT FOR PUBLICATION                              MAR 17 2017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 CARTER,                                    No. 12-16777

              Petitioner-Appellant,              D.C. No. 1:12-cv-00829-AWI

 v.
                                                 MEMORANDUM*
RONALD DAVIS, Acting Warden,

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Anthony W. Ishii, District Judge, Presiding

                            Submitted March 8, 2017**

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

      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 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 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.




                                          2                                   12-16777
