Summary Calendar ROBERT HOWARD v. Kathleen Bblanco; Richard Lstalder; Nburl Cain; Ronald Cox

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-30046
Summary Calendar
ROBERT HOWARD
Plaintiff-Appellant
v.
KATHLEEN B BLANCO; RICHARD L STALDER; N BURL CAIN; RONALD
COX
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:06-CV-612
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Robert Howard, Louisiana prisoner # 80968, seeks to proceed in forma
pauperis (IFP) on appeal from the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint. In his complaint, Howard alleged that he was convicted in
1968 as a 15 year old and was sentenced to life imprisonment. He averred that
the Louisiana Board of Pardons (LBOP) recommended the commutation of his
sentence in 2003, but the governor left office without taking action on his case.
Howard alleged that the LBOP subsequently informed him that he must wait
United States Court of Appeals
Fifth Circuit
F I L E D
January 14, 2008
Charles R. Fulbruge III
Clerk

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five years to reapply for a pardon or commutation of his sentence, a waiting
period established by LA. REV. STAT. ANN. § 15:574.2D, which was not in effect
at the time of his conviction. Howard claimed that the application of laws
enacted following his conviction violated the prohibitions on ex post facto laws
of the Federal Constitution and the Louisiana Constitution.
The district court, without ordering service of the defendants, dismissed
Howard’s federal law claims under 28 U.S.C. § 1915(e)(2)(B) as frivolous and for
failure to state a claim on which relief could be granted and declined to exercise
supplemental jurisdiction over Howard’s state law claim. The district court
certified that Howard’s appeal was not taken in good faith.
By moving for leave to proceed IFP on appeal, Howard is challenging the
district court’s certification that his appeal was not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 n.21 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3);
FED. R. APP. P. 24(a)(3). This court may authorize Howard to proceed IFP on
appeal if the appeal presents a nonfrivolous issue. 28 U.S.C. § 1915(a)(1); see
Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir. 1988). If, as is the case here, the
merits of the appeal are “inextricably intertwined with the certification
decision,” this court may determine both issues. See Baugh, 117 F.3d at 202.
A dismissal under § 1915(e)(2)(B) for failure to state a claim upon which
relief may be granted is reviewed under the same de novo standard as a
dismissal under Federal Rule of Civil Procedure 12(b)(6). Black v. Warren,
134 F.3d 732, 733-34 (5th Cir. 1998). “The complaint must be liberally
construed, with all reasonable inferences drawn in the light most favorable to
the plaintiff.” Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir. 2005). The
plaintiff is required to make sufficient factual allegations “to raise a right to
relief above the speculative level, on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly,
127 S. Ct. 1955, 1965 (2007) (citations omitted). The dismissal of an IFP
complaint as frivolous typically is reviewed for abuse of discretion; however,

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where the district court also finds that the complaint fails to state a claim, as
here, it is reviewed de novo. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
Howard argues that his complaint states a claim for relief under § 1983
because the application of laws enacted after his conviction, including the
waiting period established by § 15:574.2D, violate the Ex Post Facto Clause. He
also contends that the district court erred in dismissing his action without
conducting a Spears hearing. See Spears v. McCotter, 766 F.2d 179 (5th Cir.
1985).
In Dunn v. Maggio, 712 F.2d 998, 1001-02 (5th Cir. 1983), this court
rejected a claim that the repeal of LA. REV. STAT. ANN. § 15:571.7, which
contained provisions pertaining to the process by which a prisoner sentenced to
life imprisonment may obtain a commutation of his sentence constituted a
violation of the Ex Post Facto Clause. However, the court in Dunn did not
resolve the issue central to the instant case, which is whether the application to
Howard of current Louisiana law governing the pardon and sentence
commutation process violates the Ex Post Facto Clause.
The Supreme Court, in Garner v. Jones, 529 U.S. 244, 255 (2000) and in
California Dept. of Corr. v. Morales, 514 U.S. 499 (1995), has issued decisions
addressing substantially similar claims challenging the application of changes
in the timing of parole reconsideration hearings as violative of the Ex Post Facto
Clause. Under the principles of the above cases, to state a claim on which relief
could be granted Howard was required to plead facts that would show that, “as
applied to his own sentence,” the new laws governing the process for obtaining
a pardon or commutation of his sentence “created a significant risk of increasing
his punishment.” See Garner, 529 U.S. at 255.
Considering the above authorities, relevant Louisiana statutory
provisions, and the allegations of Howard’s complaint, we have determined that
Howard has stated a claim on which relief can be granted. Accordingly,

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Howard’s IFP motion is granted, the judgment of the district court is vacated,
and the matter is remanded to the district court for further proceedings.
Given our disposition of this matter, which reflects no opinion on the
merits of Howard’s action, we have no occasion to decide whether the district
court erred by dismissing Howard’s complaint without conducting a
Spears hearing.
IFP MOTION GRANTED; VACATED AND REMANDED.

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