David Carter v. RONALD DAVIS, Acting Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID CARTER,
Petitioner-Appellant,
v.
RONALD DAVIS, Acting Warden,
Respondent-Appellee.
No. 12-16777
D.C. No. 1:12-cv-00829-AWI
MEMORANDUM*
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.
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).

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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.
12-16777 2

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