          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                 FILED
                                                              February 29, 2008
                               No. 07-30246
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

DENNIS SEARS

                                           Plaintiff-Appellant

v.

KATHLEEN BABINEAUX BLANCO, Governor; RICHARD L STALDER,
Secretary (Department of Corrections); BURL CAIN, WARDEN, LOUISIANA
STATE PENITENTIARY; RONALD COX, Chairman Pardon Board

                                           Defendants-Appellees


                 Appeal from the United States District Court
                     for the Middle District of Louisiana
                           USDC No. 3:06-CV-694


Before GARWOOD, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
      Dennis Sears, Louisiana prisoner # 74681, appeals the district court’s
January 2007 dismissal of his 42 U.S.C. § 1983 complaint filed in September
2006. In his complaint, Sears alleged that he was convicted in 1971 as a 17 year
old and was sentenced to life imprisonment. He averred that the Louisiana
Board of Pardons (LBOP) recommended the commutation of his sentence in


      *
      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should not be published and is not precedent except under the limited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.
                                       No. 07-30246

1995, but the governor left office without taking action on his case.1 Sears
alleges that the waiting period to reapply for a pardon or commutation of his
sentence and the necessary votes to obtain a pardon or commutation of his
sentence that are now applicable to him are established by LA. REV. STAT. ANN.
§ 15:574.2(D), which was not in effect at the time of his conviction.2 Sears
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 on the defendants, dismissed
Sears’s federal law claims under 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous and
declined to exercise supplemental jurisdiction over Sears’s state law claim. The
district    court’s   dismissal   of    Sears’s   complaint   as   frivolous   under
section 1915(e)(2)(B)(i) is reviewed for abuse of discretion. See Geiger v. Jowers,
404 F.3d 371, 373 (5th Cir. 2005). Pursuant to this section, a complaint shall be
dismissed as frivolous if at any time the court determines that the complaint
does not have an arguable basis in law or fact. “A complaint lacks an arguable
basis in law if it is based on an indisputably meritless legal theory, such as if the
complaint alleges the violation of a legal interest which clearly does not exist.”
McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.1997) (internal quotation
omitted).    Claims are factually frivolous when they are based on factual
allegations that are delusional, fantastic, or clearly baseless.          Denton v.
Hernandez, 504 U.S. 25, 32-33 (1992).




      1
       According to Sears's complaint, the LBOP then informed him that he was
to reapply to the LBOP one year after the date of the Governor's inaction on the
LBOP's recommendation. Sears does not aver that he ever reapplied for relief
with the LBOP.
      2
      Sears's complaint does not state whether he is currently barred from
applying for a commutation or pardon by section 15:574.2(D).

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      Sears argues that his complaint states a claim for relief under section 1983
because the application of laws enacted after his conviction, including the
waiting period established by section 15:574.2(D), 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
Sears 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 (2000) and in
California Dept. of Corr. v. Morales, 514 U.S. 499 (1995), addressed claims
challenging whether changes in the timing of parole reconsideration hearings
violated he Ex Post Facto Clause.
      Under the principles of the above cases, Sears can assert a claim under the
Ex Post Facto Clause if he can 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. Construed liberally, Sears’s complaint avers that the changes
to Louisiana's pardon and commutation process have limited the frequency with
which he can apply for a commutation or pardon.            Arguably, this could
potentially create a significant risk of increasing the length of his prison term
to be actually served.
      Consequently, we hold that it cannot be adequately determined merely
from the face of Sears’s complaint whether his section 1983 claim has no

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arguable basis in law and fact and, therefore, the district court should not have
dismissed the action as frivolous at this stage of the proceedings. Accordingly,
the judgment of the district court is vacated, and the matter is remanded to the
district court for further proceedings to determine whether Louisiana's current
pardon and commutation system creates a significant risk of increasing Sears’s
punishment. This should include a determination of whether Sears is currently
barred by section 15:574.2(D) from having his case reviewed by the LBOP to an
extent or in circumstances that relief is not available to him that would have
been available to him when his offense was committed and that at as a result
there is created a significant risk of increasing the punishment he actually will
suffer had the previous system remained in effect.3
            VACATED AND REMANDED.




      3
      A Spears hearing or other similar procedure would doubtless be
appropriate to determine what particular facts relevant in these connections are
claimed by Sears.

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