David Dugan v. Gary Swarthout

Ninth Circuit

David Dugan v. Gary Swarthout

682 F. App'x 622

CourtCourt of Appeals for the Ninth Circuit

DecidedMarch 17, 2017

Docket11-16043

StatusUnpublished

This text of 682 F. App'x 622 (David Dugan v. Gary Swarthout) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

David Dugan v. Gary Swarthout, 682 F. App'x 622 (9th Cir. 2017).

Pincite

Opinion

*623 MEMORANDUM ***

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 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 appeal-ability (“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. -, 137 S.Ct. 645, 196 L.Ed.2d 542 (2017)); 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.

***

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Free access — add to your briefcase to read the full text and ask questions with AI

*623 MEMORANDUM ***

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 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 appeal-ability (“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. -, 137 S.Ct. 645, 196 L.Ed.2d 542 (2017)); 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.

***

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Cite This Page — Counsel Stack

Bluebook (online)

682 F. App'x 622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-dugan-v-gary-swarthout-ca9-2017.

Opinion

Related

Cite This Page — Counsel Stack