* 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should not be published and is not precedent except under the limited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
No. 07-30046

2

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,
No. 07-30046

3

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,
No. 07-30046

4

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.