                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                       UNITED STATES COURT OF APPEALS
                                FIFTH CIRCUIT                        March 21, 2006

                                                                Charles R. Fulbruge III
                                                                        Clerk
                                No. 05-70034


                           CHRISTOPHER SEPULVADO,

                                                      Plaintiff-Appellant,

                                   versus

  LOUISIANA BOARD OF PARDONS AND PAROLE; LARRY CLARK, Board Member
and Vice Chairman; RONALD D. COX, District Judge, (Retired) Board
      Member and Chairman; CLEMENT LaFLEUR, Board Member; TED
     MIGUES; JULIA BRUMFIELD SIMS; KATHLEEN BABINEAUX BLANCO,
  Governor of Louisiana; RICHARD STALDER, Secretary of Louisiana,
 Department of Public Safety and Corrections,

                                                     Defendants-Appellees.


            Appeal from the United States District Court
                 for the Middle District of Louisiana
                          (3:04-cv-00820-SCR)


Before SMITH, WIENER, and BARKSDALE, Circuit Judges.

Per Curiam:*

      Death–sentenced Louisiana state prisoner Christopher Sepulvado

appeals this action’s being dismissed under Federal Rule of Civil

Procedure 12(b)(6) (failure to state claim). Pursuant, inter alia,

to   42   U.S.C.   §   1983,   Sepulvado    claims   the   State’s   clemency

procedure violates the Eighth (cruel and unusual punishment) and

Fourteenth (due process denial) Amendments.           AFFIRMED.


      *
       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this opinion should not be published and is not precedent except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.
                                    I.

      In 1993, Sepulvado was convicted of murder and sentenced to

death. Sepulvado v. La. Bd. of Pardons & Parole, 114 F. App’x 620,

621 (5th Cir. 2004).      He is incarcerated on death row in the state

penitentiary.

      Sepulvado   filed   a   similar    action   in    2003,   claiming   the

clemency system denied him due process.       Id.      Because Sepulvado had

not yet applied for clemency, the district court dismissed the

complaint for lack of standing, and we affirmed (lack of subject

matter jurisdiction), holding the dismissal was without prejudice.

Id. at 622.

      After the district court had dismissed the complaint in the

first action, but before that dismissal was affirmed, Sepulvado

applied for clemency.      In June 2004, his application was denied.

Id.

      Sepulvado filed this action that November.           It was dismissed

in May 2005.

                                   II.

      We review de novo a Rule 12(b)(6) motion’s being granted.

Ballard v. Wall, 413 F.3d 510, 514 (5th Cir. 2005).               Each well-

pleaded allegation in the complaint “must be accepted as true, and

the dismissal will be affirmed ‘only if it appears that no relief

could be granted under any set of facts that could be proven

consistent with the allegations’”. Id. at 514-15 (quoting Moore v.


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Carwell, 168 F.3d 234, 236 (5th Cir. 1999)).          For complaints, the

Federal Rules     of   Civil   Procedure    require   “a   short   and   plain

statement of the claim showing that the pleader is entitled to

relief”.     FED. R. CIV. P. 8(a)(2).      Instead, Sepulvado’s two–claim

complaint is 36 pages, more closely resembling a brief.

     Ohio Adult Parole Authority v. Woodard,          523 U.S. 272 (1998),

held Ohio’s clemency procedures did not violate the Constitution;

Justice O’Connor’s concurrence (providing the fifth vote) stated

only “minimal procedural safeguards apply to clemency proceedings”.

Id. at 289 (O’Connor, J., concurring) (emphasis in original).

Justice O’Connor suggested relief “might, for example, be warranted

in the face of a [clemency] scheme whereby a state official flipped

a coin to determine whether to grant clemency, or in a case where

the State arbitrarily denied a prisoner any access to its clemency

process”.    Id. (emphasis added).

     Subsequently, in line with Justice O’Connor’s position, our

court stated minimal procedures are required.          Faulder v. Tex. Bd.

of Pardons & Paroles, 178 F.3d 343, 344 (5th Cir.), cert. denied,

527 U.S. 1017 (1999) (stating clemency process requires minimal

procedural    safeguards).      Because    clemency   “decisions    are   not

traditionally the business of courts”, there is an extremely “low

threshold of judicial reviewability”.          Id.




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                                   A.

     Sepulvado’s    complaint    seeks   to   distinguish   Louisiana’s

clemency procedure from those in other States, claiming, inter

alia, because Louisiana law does not guarantee a clemency hearing,

its procedure falls below the minimum due–process threshold. Other

cases involving constitutional challenges to clemency procedures,

including Woodard and Faulder, however, do not establish specific

requirements States must follow.

     Louisiana state law allows every inmate to apply for clemency

(which Sepulvado did).    As shown infra, Sepulvado fails to state a

claim in asserting Louisiana’s clemency procedure falls below the

minimum constitutional threshold.

     The Governor may commute a sentence only upon the Board’s

recommendation.    LA. CONST. art. IV, § V; LA. REV. STAT. ANN. § 15:572.

When seeking clemency in Louisiana, the first step is filing an

application that includes, inter alia: (1) name and prison number;

(2) date of birth; (3) offense charged, convicted of or pled to;

(4) date and length of sentence; (5) time served; (6) reason for

requested clemency; (7) relief requested and narrative detailing

the events surrounding the offense; and (8) any institutional

disciplinary reports.    LA. ADMIN. CODE tit. 22, § V.103(A).     Except

in cases involving inmates who have served less than 15 years of a

life sentence and have evidence demonstrating actual innocence, no




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further information may be provided unless a clemency hearing is

granted.   Id. § V.103(C).

     After the application is filed, at least four Board members

review the application to determine whether a clemency hearing is

warranted.    Id. § V.101(C).   The Board has discretion to grant a

clemency hearing;   Louisiana law lists eight reasons for which the

Board, in its discretion, may deny one.        Id. § V.105.   Sepulvado’s

application was denied, without a hearing, for two of § 105’s

listed reasons: (1) because his offense was serious in nature; and

(2) because he had not served sufficient time.

     Sepulvado was allowed to apply for clemency, and the complaint

does not allege the Board failed to consider his application before

denying it.    Instead, Sepulvado makes a facial challenge to the

procedure. His complaint alleges, for example, the Governor rarely

grants clemency to violent offenders; this, however, does not state

a claim for a due–process violation.

     Sepulvado   contends    dismissal   was    inappropriate   because,

without discovery, he cannot determine whether clemency was denied

arbitrarily, possibly even based on the coin–flip example in

Justice O’Connor’s concurring opinion in Woodard.             Sepulvado’s

complaint, however, does not allege he was denied clemency in that

fashion; and, as discussed earlier, we are confined to reviewing

only the complaint when considering a Rule 12(b)(6) motion.




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     In the light of the allegations in the complaint, Sepulvado

had full access to the clemency process, and the Board considered

his application before denying him a clemency hearing.             Under the

highly deferential Faulder standard of review, Sepulvado does not

state a due–process–denial claim for which relief can be granted.

                                     B.

     Sepulvado’s complaint similarly claims the clemency procedure

violates the Eighth Amendment’s prohibition against cruel and

unusual punishment.     For the same reasons he failed to state a

due–process   claim,   he   fails    to    state   one   under    the   Eighth

Amendment.

                                    III.

     For the foregoing reasons, the judgment is

                                                                 AFFIRMED.




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