NOT FOR PUBLICATION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, CLER K

U.S. COURT OF APPEAL S2 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

- E3 Respondent

- Appellee.
Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presidin g 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 th is
Court’s decision in Gilman v. B rown , 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 4 072465 (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 cas es, petitioners sought habeas corpus relief under 2 8 U.S.C. § 2254, a rguing that as applied Marsy’s Law violates the Ex Post Facto4 Clause, U.S. Const. Art. I, §§ 9, 10, by impermissibly advanc ing the dates for parole hearing s
. None of the petitioners’ claims lies at “the core of habeas corpus,” because

pe titioners 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
pet itioners’ 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
veh icle 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 p etitions to assert claims under 42 U.S.C. § 1983. Id. (“[A] district court may construe a petition for habeas c orpus to plead a cause of action under § 1983 after notifying and obtaining informed consent from the prisoner.”).
3. If any petitioner choose s 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,” Dk t. 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 consoli d ation 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.