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NOT FOR PUBLICATION MAR 17 2017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