Shelby Byrd v. ERIC ARNOLD, Acting Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHELBY BYRD,
Petitioner-Appellant,
v.
ERIC ARNOLD, Acting Warden,
Respondent-Appellee.
No. 11-16366
D.C. No. 2:10-cv-01871-MCE
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Shelby Byrd appeals pro se 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 three years in
accordance with California Penal Code § 3041.5 (“Marsy’s Law”). We dismiss.
FILED
MAR 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

-- 1 of 2 --

This court issued a certificate of appealability (“COA”) on whether
application of Marsy’s Law to delay Byrd’s next parole hearing for three years
violates the Ex Post Facto Clause, and whether Byrd’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. 19, 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 Byrd from pursuing
conditions of confinement claims in a properly filed civil rights action under 42
U.S.C. § 1983.
DISMISSED.
11-16366 2

-- 2 of 2 --