                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                        July 26, 2004

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 04-60179
                             Summary Calendar


                               LEROY WELCH,

                                                     Plaintiff-Appellant,

                                  versus

           CHRISTOPHER EPPS, Commissioner of Corrections;
         MICHAEL WILSON, Superintendent, Mississippi State
           Penitentiary; STANLEY FLAGG, Associate Warden,
             Unit 24; LETITIA ROACH, Offender Services,

                                                    Defendants-Appellees.



            Appeal from the United States District Court
              for the Northern District of Mississippi
                       USDC No. 4:04-CV-12-P-A


Before HIGGINBOTHAM, JONES, and PRADO, Circuit Judges.

PER CURIAM:*

           Leroy Welch, a Mississippi prisoner (# 47598), challenges

the district court’s denial of his application to proceed in forma

pauperis (“IFP”) on appeal following the district court’s dismissal

of his 42 U.S.C. § 1983 complaint for failure to state a claim upon

which relief may be granted.      Welch is effectively challenging the

district court’s certification that he should not be granted IFP


     *
            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opinion should not be published and is not precedent except under the limited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.
status because his appeal is not taken in good faith.           See Baugh v.

Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3);

FED. R. APP. P. 24(a).

          Welch   has    asserted   that   a   new   “points    system”   for

determining custodial classification has resulted in a negative

change in his own classification, in violation of his rights under

the Due Process, Ex Post Facto, and Double Jeopardy Clauses.              The

district court properly concluded that a due-process claim was

barred by Sandin v. Conner, 515 U.S. 472, 484 (1995).          Although the

court did not explicitly address Welch’s allegations under an

ex post facto or double-jeopardy framework, he has failed to state

claims under those constitutional clauses as well. Welch has cited

no decisional authority, and we are aware of none, which holds that

a mere change in custodial status either amounts to an “increase”

in the “measure of punishment” for ex post facto purposes, see,

e.g., Garner v. Jones, 529 U.S. 244, 249-50 (2000), or qualifies as

a second “punishment” for double-jeopardy purposes.            See Hudson v.

United States, 522 U.S. 93, 98-99 (1997); United States v. Galan,

82 F.3d 639, 640 (5th Cir. 1996).

          Welch has failed to show that his complaint presented

non-frivolous issues for appeal.           Accordingly, we uphold the

district court’s order certifying that the appeal is not taken in

good faith.    Welch’s request for IFP status is DENIED, and his

appeal is DISMISSED as frivolous.          See Baugh, 117 F.3d at 202

& n.24; 5TH CIR. R. 42.2.   The dismissal of this appeal as frivolous

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counts as a “strike” for purposes of 28 U.S.C. § 1915(g), as does

the district court’s dismissal of his complaint for failure to

state a claim.     See Adepegba v. Hammons, 103 F.3d 383, 388 (5th

Cir. 1996).      Welch is cautioned that if he accumulates three

strikes, he will not be permitted to proceed IFP in any civil

action or appeal filed while he is incarcerated or detained in any

facility unless he is under imminent danger of serious physical

injury.   See 28 U.S.C. § 1915(g).

          IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; THREE-STRIKES

WARNING ISSUED.




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