NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEMETRIUS BORSTAD,

Petitioner-Appellant,

 v.

J. HARTLEY, Warden,

Respondent-Appellee.

No. 10-15412

D.C. No. 5:09-cv-03756-JW

ORDER*

Appeal from the United States District Court

for the Northern District of California

James Ware, District Judge, Presiding

TONY EUGENE SAFFOLD, AKA Tony 

Eugene fSaffold,

Petitioner-Appellant,

 v.

RICK HILL, Warden,

Respondent-Appellee.

No. 11-16355

D.C. No.

1:10-cv-01295-OWW-MJS

 * This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

AUG 26 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

RENO FUENTES RIOS,

Petitioner-Appellant,

 v.

WARDEN OF CSP-CORCORAN,

Respondent-Appellee.

No. 11-16570

D.C. No. 1:11-cv-00667-GSA

Appeal from the United States District Court

for the Eastern District of California

Oliver W. Wanger, Senior District Judge, Presiding

Gary S. Austin, Magistrate Judge, Presiding

ERIC WICKLIFFE,

Petitioner-Appellant,

 v.

GARY SWARTHOUT, Warden and 

BOARD OF PAROLE HEARINGS,

Respondents-Appellees.

No. 11-17842

D.C. No.

2:11-cv-02172-MCE-GGH

 Appeal from the United States District Court

 for the Eastern District of California 

 Morrison C. England Jr., District Judge, Presiding

HUBERT PETRICH,

Petitioner-Appellant,

 v.

TERRI GONZALEZ, Warden,

No. 11-55308

D.C. No.

5:10-cv-01661-DSF-E
3 

Respondent-Appellee.

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted August 12, 2013

Submission Vacated April 30, 2015

Resubmitted August 26,2016

San Francisco, California

Before: REINHARDT, NOONAN, and HURWITZ, Circuit Judges.

These cases involve challenges to Proposition 9, The Victims’ Bill of Rights 

Act of 2008 (“Marsy’s Law”), see Cal. Const. art. I, § 28; Cal Penal Code 

§§ 679.026, 3041.5, 3043, 3044, by California prisoners serving indeterminate life 

sentences with the possibility of parole. Argument in each case was heard on August 

12, 2013, and submission was vacated in each case on April 30, 2015, pending this 

Court’s decision in Gilman v. Brown, No. 14-15613. In the wake of our opinions in 

Gilman v. Brown, 814 F.3d 1007 (9th Cir. 2016), and Nettles v. Grounds, No. 12-

16935, 2016 WL 4072465 (9th Cir. 2016) (en banc), we today resubmit these cases 

for decision. We have jurisdiction under 28 U.S.C. § 2253, and vacate and remand

for identical reasons in each case.

1. In each of these cases, petitioners sought habeas corpus relief under 28 

U.S.C. § 2254, arguing that as applied Marsy’s Law violates the Ex Post Facto 
4 

Clause, U.S. Const. Art. I, §§ 9, 10, by impermissibly advancing the dates for parole 

hearings. None of the petitioners’ claims lies at “the core of habeas corpus,” because 

petitioners do not challenge the “validity of any confinement or . . . the particulars 

affecting its duration,” Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam), 

but rather only the timing of each petitioner’s next parole hearing. Success on the 

petitioners’ claims would not necessarily result in a shortening of their sentences. 

Thus, the district court in each case lacked jurisdiction to grant 28 U.S.C. § 2254 

habeas relief. Nettles, 2016 WL 4072465, at *10 (“[A] § 1983 action is the exclusive 

vehicle for claims brought by state prisoners that are not within the core of habeas 

corpus.”). The judgments below on the merits of petitioners’ constitutional claims 

therefore are vacated.

2. On remand, petitioners should be afforded leave to amend their petitions 

to assert claims under 42 U.S.C. § 1983. Id. (“[A] district court may construe a 

petition for habeas corpus to plead a cause of action under § 1983 after notifying and 

obtaining informed consent from the prisoner.”). 

3. If any petitioner chooses to amend, the district court should determine in 

the first instance the impact of Gilman on his claims. 

VACATED AND REMANDED. Each party shall bear their own costs.

In No. 10-15412, Borstad’s “Motion to Submit Uncertified Issues on Appeal 

and on the Grounds of Jurisdiction,” Dkt. No. 5, is DENIED.
5 

In No. 10-15412, Borstad’s “Motion to Submit Intervening United States 

Supreme Court Law in Support of Request for Certificate of Appealability,” Dkt. 

No. 6, is DENIED.

In No. 10-15412, Borstad’s “Request for Judicial Notice,” Dkt. No. 28, is 

GRANTED.

In No. 11-16355, Appellee’s “Request for Judicial Notice,” Dkt. No. 35, is 

GRANTED.

In No. 11-16355, Saffold’s “Motion for Judicial Notice,” Dkt. No. 41, is 

GRANTED.

In No. 11-16355, Appellee’s “Request for Judicial Notice,” Dkt. No. 58, is 

GRANTED.

In No. 11-16355, Saffold’s “Motion for Order Remanding Matter to District 

Court” in Saffold v. Hill, No. 11-16355, Dkt. No. 86, is DENIED without prejudice 

to renewing the request for consolidation in the district court.

In No. 11-16570, Rios’s “Request for Judicial Notice of Evidentiary Hearing 

and Transcript,” Dkt. No. 16, is GRANTED.

In No. 11-16570, Appellee’s “Request for Judicial Notice,” Dkt. No. 44, is 

GRANTED.

In No. 11-55308, Appellee’s “Motion to Substitute Party,” Dkt. No. 4, is 

GRANTED.
6 

In No. 11-55308, Petrich’s “Request for Judicial Notice of Transcript,” Dkt. 

No. 15, is GRANTED.

In No. 11-55308, Amicus Curiae’s “Notice,” Dkt. No. 47, is DENIED.

In No. 11-55308, Appellee’s “Request for Judicial Notice,” Dkt. No. 49, is 

GRANTED.