                                                                            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                           NOT FOR PUBLICATION                               MAR 17 2017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


JOHN ARTHUR FREE,                                No. 11-17631

              Petitioner-Appellant,              D.C. No. 2:11-cv-0166GGH

 v.
                                                 MEMORANDUM*
GARY SWARTHOUT, Warden,

              Respondent-Appellee.


                  Appeal from the United States District Court
                      for the Eastern District of California
                Gregory G. Hollows, Magistrate Judge, Presiding**

                            Submitted March 8, 2017***

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

       John Arthur Free appeals from the district court’s judgment denying his 28

U.S.C. § 2254 habeas petition challenging a 2010 decision by the Board of Parole


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The parties consented to proceed before a magistrate judge.
      ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. R. 34(a)(2).
Hearings denying parole and deferring his next parole hearing for seven 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 Free’s next parole hearing for seven years

violates the Ex Post Facto Clause, and whether Free’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 Free 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.




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