Dennis Hamilton v. Board of Parole Hearing

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NOT FOR PUBLICATION MAR 14 2017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

DENNIS L. HAMILTON, No. 11-16437

Petitioner-Appellant, D.C. No. 1:10-cv-01972-OWW

v.
MEMORANDUM*
BOARD OF PAROLE HEARINGS and
Neil McDowell, Warden,

Respondents-Appellees.

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

Submitted March 8, 2017**

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

Dennis L. Hamilton appeals pro se from the district court’s judgment

denying his 28 U.S.C. § 2254 habeas petition challenging a 2009 decision by the

*
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).
Board of Parole Hearings denying parole and deferring his next parole hearing 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 Hamilton’s next parole hearing 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 Hamilton 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 11-16437