                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                     UNITED STATES COURT OF APPEALS
                              FIFTH CIRCUIT                        November 5, 2004

                                                               Charles R. Fulbruge III
                                                                       Clerk
                              No. 04-30410


                         CHRISTOPHER SEPULVADO,

                                                     Plaintiff-Appellant,

                                    versus

               LOUISIANA BOARD OF PARDONS AND PAROLE;
     C.J. BELL, Board Member; PAUL BLANGE, III, Board Member;
                     LARRY CLARK, Board Member;
            IRVIN L. MAGRI, JR., Board Member and Chair;
 JULIA BRUMFIELD SIMS, Board Member; KATHLEEN BABINEAUX BLANCO,
      Governor of Louisiana; RICHARD L. 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
                           (3:03-CV-788-C)


Before SMITH, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     This   action    was   filed    pursuant   to   42   U.S.C.    §   1983.

Christopher Sepulvado, who received the death penalty in Louisiana

state court, appeals the dismissal, for lack of standing, of his

claim that the clemency process of the Louisiana Board of Pardons

and Parole does not meet minimal due process standards.            AFFIRMED.

                                      I.

     *
       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this opinion should not be published and is not precedent except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.
     Sepulvado was convicted of first degree homicide and sentenced

to death in 1993.         The conviction and sentence were affirmed on

direct appeal.      State v. Sepulvado, 672 So. 2d 158 (La.), cert.

denied, 519 U.S. 1035 (1996).

     Sepulvado      was   denied   post-conviction    relief   in   Louisiana

district court; the Louisiana Supreme Court affirmed in March 2000.

Later that month, Sepulvado filed for federal habeas relief.                In

August 2002, the district court denied relief and a certificate of

appealability (COA).        Our court denied Sepulvado’s COA-request.

Sepulvado v. Cain, 58 Fed. Appx. 595 (5th Cir.)(unpublished), cert.

denied, 124 S. Ct. 110 (2003).

     In October 2003, Sepulvado filed this § 1983 action, seeking

declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and

2202 for claimed violations of his Eighth and Fourteenth Amendment

rights. He claims the Board’s clemency procedures deny him minimal

due process, see Ohio Adult Parole Authority v. Woodward, 523 U.S.

272, 289-90 (1998) (O’Connor, J., concurring), because:             he is not

entitled   to   a   hearing    for   his   clemency   application;    and   an

amendment to the Board’s procedures, subsequent to his conviction,

requires all applications to be filed within one year of exhaustion

of direct appeals.        See LA. ADMIN. CODE tit. 22, § 101(D) (1998).

     On 31 March 2004, the district court dismissed the action for

lack of standing because Sepulvado had not filed an application for

clemency. Two days later, Sepulvado applied for clemency. And, on


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21 April 2004, he filed a notice of appeal from the dismissal of

this action.

     The clemency application was denied on 8 June 2004.               The

stated reasons for the denial were the serious nature of the

offense and an insufficient amount of time served.

                                   II.

     Dismissal pursuant to FED. R. CIV. P. 12(b)(1) and (6) is

reviewed de novo.   E.g., Herbert v. United States, 53 F.3d 720, 722

(5th Cir. 1995).    The district court held:    because Sepulvado had

not applied for clemency before filing this action, he lacked

standing   to   challenge   the   constitutionality    of   the   clemency

process.   Post-dismissal, Sepulvado applied for clemency; it was

denied.    He contends, inter alia, that the district court abused

its discretion by not allowing him to amend his complaint.           E.g.,

Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330

(1971).

                                    A.

     Pursuant to Article III of the Constitution, standing to bring

a claim requires, in part, that “the plaintiff must have suffered

an ‘injury-in-fact’ — an invasion of a legally protected interest

which is (a) concrete and particularized ... and (b) actual or

imminent not conjectural or hypothetical...”.         Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560 (1992).       Because, prior to filing

this action, Sepulvado had not filed an application for clemency,


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his claims of injury based on any alleged constitutional defects in

the clemency process were speculative.               Accordingly, the district

court    did   not    err   in   dismissing    for    lack    of   subject-matter

jurisdiction, pursuant to Rule 12(b)(1).

                                        B.

     Sepulvado’s action was dismissed on 31 March 2004; his 2 April

2004 clemency application was denied on 8 June 2004.                    Sepulvado

maintains the district court abused its discretion by not allowing

him to amend his complaint post-denial of his clemency application.

His notice of appeal was filed, however, before the denial of that

application.

     In    his   opposition      to   the    motion    to    dismiss,   Sepulvado

requested permission to amend if the court ruled he had to apply

for clemency.        The record does not disclose if, or when, Sepulvado

moved to amend his complaint after applying for clemency or the

ground for the district court’s denial, if any.                In any event, the

district court lost jurisdiction upon the notice of appeal’s being

filed.    E.g., Rutherford v. Harris County, Tex., 197 F.3d 173, 190

(5th Cir. 1999).

                                        C.

     The Board moved to dismiss Sepulvado’s claims for both lack of

subject-matter jurisdiction and failure to state a claim.                See FED.

R. CIV. P. 12(b)(1)and(6).         The district court did not specify the

ground on which it based its decision, or whether the dismissal was


                                        4
with prejudice. Dismissal for lack of subject-matter jurisdiction,

pursuant to Rule 12(b)(1), is without prejudice; dismissal for

failure to state a claim, pursuant to Rule 12(b)(6), is with

prejudice.   E.g., Hitt v. Pasadena, 561 F.2d 606, 608 (5th Cir.

1977).   The dismissal was for lack of subject-matter jurisdiction

(standing); therefore, it is without prejudice.

                                 D.

     A critical issue the district court did not reach is whether

Sepulvado’s claims were properly filed pursuant to § 1983 or

whether they should have been presented in a habeas petition.

Because Sepulvado has already pursued an unsuccessful federal

habeas petition, if he cannot bring his claims under § 1983, he

will be subject to the certification requirements of 28 U.S.C. §

2244(b) for successive habeas petitions, should he again file the

claims in the instant action.   This appeal having been resolved on

standing grounds, we do not reach whether habeas corpus or § 1983

is the proper basis for pursuing his claims.

                                III.

     For the foregoing reasons, the judgment is

                                                      AFFIRMED.




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