*1 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. *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. 11-16043

2

[*] 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).