     Case: 14-30297      Document: 00513143377         Page: 1    Date Filed: 08/05/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-30297                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
RANDY R. CARSON,                                                           August 5, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

WAYNE MILLUS,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:13-CV-2774


Before WIENER, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Randy R. Carson, a Louisiana state prisoner, filed a
pro se, in forma pauperis complaint against his prison warden. The federal
district court dismissed the complaint as frivolous and for failure to state a
claim under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. We AFFIRM in part, but
we VACATE the part of the judgment that dismissed Carson’s complaint as
frivolous.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-30297      Document: 00513143377     Page: 2   Date Filed: 08/05/2015



                                   No. 14-30297
                            FACTS AND PROCEEDINGS
        A Louisiana jury found Carson guilty of four drug charges, including
possession of oxycodone (Count 3). State v. Carson, No. 2009 KA 1577, 2010
WL 559731, at *1 (La. Ct. App. Feb. 12, 2010). For each count, the Louisiana
trial court sentenced him to concurrent five-year terms of imprisonment at
hard labor. Id. While his appeal was pending with the Louisiana Court of
Appeals, the State of Louisiana filed a habitual offender bill of information
against Carson as to Count 3, alleging that he was a fourth-felony habitual
offender. State v. Carson, No. 2010 KA 1522, 2011 WL 1103512, at *1 (La. Ct.
App. Mar. 25, 2011).      Before the Louisiana trial court held a hearing on
Carson’s habitual offender status, he was released based on good time credit
earned during his original, five-year concurrent sentences. Id.
        After Carson’s release, the Louisiana trial court held a hearing as to the
habitual offender bill of information. Id. It found that Carson was a second-
felony habitual offender. Id. Accordingly, it vacated the sentence that it had
imposed as to Count 3 and sentenced him to nine years’ imprisonment at hard
labor, to run concurrently with the five-year sentences for the other three
counts. Id. He was therefore taken back into custody to serve the remaining
term.
        In his complaint, Carson alleges that he later discovered that the warden
had not credited the good time he had earned while serving his original
sentence toward his new, nine-year sentence for Count 3. He asked the warden
why this was the case, but the warden did not provide a reason. Carson sued
the warden in federal district court under 42 U.S.C. § 1983, alleging a violation
of the Due Process Clause and requesting an injunction and monetary
damages.
        A magistrate judge prepared a Report and Recommendation (“R&R”)
recommending the dismissal of Carson’s complaint. The R&R pointed out that
                                         2
    Case: 14-30297     Document: 00513143377     Page: 3   Date Filed: 08/05/2015



                                  No. 14-30297
Carson could not seek the reduction of his sentence through a § 1983 action, so
the court could not order that the warden restore Carson’s good time credit.
The R&R then reasoned that Carson could not receive monetary damages for
the deprivation of good time either, because “any such relief would imply the
invalidity of [Carson’s] present incarceration” and would therefore violate Heck
v. Humphrey, 512 U.S. 477 (1992). The R&R recommended that the district
court dismiss Carson’s complaint with prejudice as frivolous.
      Carson objected to the R&R. He argued that he was not requesting
monetary damages or the reinstatement of good time credit. He claimed that
he was instead asking for the court to order the warden to provide a hearing
about the deprivation of good time credit. So he argued that his claim was
cognizable under § 1983.
      The district court adopted the R&R. It dismissed Carson’s complaint
with prejudice as frivolous and for failure to state a claim.
                            STANDARD OF REVIEW
      We review de novo a district court’s dismissal of a prisoner’s in forma
pauperis complaint as frivolous and for failure to state a claim. Samford v.
Dretke, 562 F.3d 674, 678 (5th Cir. 2009) (per curiam). “A document filed pro
se is ‘to be liberally construed,’ and ‘a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations
omitted) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
                                  DISCUSSION
      Carson now maintains, as he did in his objections to the R&R, that what
he is really seeking is an order requiring the warden to hold a hearing to decide




                                        3
     Case: 14-30297       Document: 00513143377         Page: 4    Date Filed: 08/05/2015



                                      No. 14-30297
whether his good time credits can be forfeited. 1 Thus, the only question before
us is whether the district court erred by dismissing Carson’s request for an
order that the warden hold a hearing on the forfeiture of his good time credits.
       Carson’s request for a hearing is likely cognizable as a § 1983 claim. 2
Ordering a hearing would not “necessarily demonstrate the invalidity of
confinement or its duration,” Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)
(citation omitted). Instead, success would at most allow Carson to receive a
hearing about whether he is entitled to good time credits, which is permissible
relief under § 1983. See id. (holding that “relief that will render invalid the
state procedures used to deny parole eligibility” is available through a § 1983
claim because “[s]uccess . . . means at most new eligibility review, which at
most will speed consideration of a new parole application”).
       Carson’s claim fails on the merits, however. Carson can succeed only if
he had a liberty interest in his good time credits, and he did not. “A unilateral
expectation of certain treatment is insufficient [to create a liberty interest]; a
prisoner must ‘have a legitimate claim of entitlement to it.’” Richardson v.
Joslin, 501 F.3d 415, 419 (5th Cir. 2007) (quoting Bulger v. U.S. Bureau of
Prisons, 65 F.3d 48, 50 (5th Cir. 1995)).             As explained below, state law
prevented good time credit from being carried over to Carson’s habitual
offender sentence. So, at least as to his habitual offender sentence, Carson



       1  Liberally construing Carson’s complaint because it is pro se, it did provide some
notice that he was requesting this relief. Specifically, he stated that he “would move this
court to order an injunction, for the instant restoration of good time credits [and] parole,
unless the Defendant can show just cause for the deprivation herein.” (emphasis added).
Further, at the time Carson filed his objections to the R&R, he probably could have amended
his complaint as a matter of right. So we assume without deciding that he properly preserved
the argument that he was entitled to a hearing concerning the restoration of his good time
credit.
        2 On appeal, Carson has not challenged the district court’s dismissal of his requests

for monetary damages or the restoration of good time credits, so we do not reach the question
of whether such relief would be cognizable in a § 1983 action.
                                             4
    Case: 14-30297    Document: 00513143377     Page: 5   Date Filed: 08/05/2015



                                 No. 14-30297
lacked any legitimate claim to the good time credit he had earned during his
previous sentence.
      Under Louisiana law, defendants may be tried and sentenced for being
habitual offenders after being tried and sentenced for qualifying offenses. La.
Rev. Stat. § 15:529.1(A). Once habitual offender status is proved, “the court
shall sentence [the defendant] to [an enhanced sentence], and shall vacate the
previous sentence if already imposed, deducting from the new sentence the
time actually served under the sentence so vacated.”       Id. § 15:529.1(D)(3)
(emphases added). A person sentenced as a habitual offender cannot receive
diminution of his sentence through good time credit. Id. § 15:571.3(C)(1).
      Here, Carson was originally tried and sentenced for possession of
oxycodone (Count 3). The State of Louisiana then filed a habitual offender bill
of information as to Count 3.     After a hearing, the Louisiana trial court
determined that Carson was a second-felony habitual offender. As the statute
required, the Louisiana trial court vacated Carson’s previous sentence as to
Count 3. The good time credit he had earned as to Count 3 ceased to exist at
this point because the sentence was completely vacated. The statute then
provides that the trial court must reduce Carson’s sentence by the amount of
time he had actually served, and it did so. This statutory scheme prevented
the court from reducing Carson’s sentence by the good time credit he had
earned while serving the vacated sentence. Instead, the statute only allows
credit for “the time actually served.” Id. § 15:529.1(D)(3) (emphasis added).
Carson was statutorily ineligible for further diminution of his sentence for good
time because he had been sentenced as a habitual offender.                    Id.
§ 15:571.3(C)(1).
      Carson points out that a separate statute provides that the Louisiana
Department of Public Safety and Corrections (the “Department”) must provide
a hearing before forfeiting an inmate’s good time, and it can only do so for a
                                       5
    Case: 14-30297     Document: 00513143377       Page: 6   Date Filed: 08/05/2015



                                 No. 14-30297
limited number of reasons. Id. § 15:571.4(D). But Carson’s good time has not
been forfeited by the Department; instead, it ceased to exist by operation of
statute, so he was not entitled to a hearing by the Department.             As the
Louisiana Court of Appeals has held:
      The fact that [the prisoner] has a constitutionally protected
      interest in good time does not deprive the legislature of the right
      to enact legislation that possibly has the effect of impacting that
      statutorily created interest. Further, the fact that the Department
      may not deprive a prisoner of good time without a hearing does not
      have any legal relevance to the situation here, because the
      Department did nothing to deprive [the prisoner] of his good time.
Kozlowicz v. State, 9 So. 3d 1000, 1006 (La. Ct. App. 2009). Similarly, here,
the Department “did nothing to deprive [Carson] of his good time,” id. Instead,
his good time was voided when he was resentenced as a habitual offender. The
Department therefore did not have to provide Carson with a hearing on the
forfeiture of his good time.
      Because Carson “cannot establish a violation of [state law], his state-
created liberty interest arguments necessarily fail.” Toney v. Owens, 779 F.3d
330, 343 (5th Cir. 2015). The district court was therefore correct to dismiss
Carson’s complaint for failure to state a claim.
      With that being said, Carson’s legal claim was not inarguable, and his
factual allegations were not fanciful.     Thus, the district court erred in
dismissing the complaint as frivolous. See Neitzke v. Williams, 490 U.S. 319,
325 (1989) (“[Section] 1915(d)’s term ‘frivolous,’ when applied to a complaint,
embraces not only the inarguable legal conclusion, but also the fanciful factual
allegation.”).
                                 CONCLUSION
      As to the habitual offender sentence, Carson had no legitimate claim to
the good time credit earned during his previous sentence. Instead, this good
time credit was voided as a matter of law when his previous sentence was
                                       6
     Case: 14-30297        Document: 00513143377           Page: 7      Date Filed: 08/05/2015



                                         No. 14-30297
vacated and he was convicted as a habitual offender. The district court did not
err in dismissing Carson’s claim for failure to state a claim. Accordingly, we
AFFIRM in part. But we VACATE the portion of the district court’s judgment
that dismissed Carson’s claim as frivolous. Moreover, because we decline to
dismiss this appeal as frivolous, our affirmance in part will not count as a
further strike against Carson under 28 U.S.C. § 1915(g). 3




       3  The district court’s judgment dismissing for failure to state a claim counts as a strike.
See § 1915(g) (providing that dismissal for failure to state a claim is a strike). But our
affirmance in part of that judgment does not count as an additional strike. See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996) (“It is straightforward that affirmance of a
district court dismissal as frivolous counts as a single ‘strike.’”). Instead, the entire course of
this litigation will only count as a single strike against Carson.
                                                7
