     Case: 10-50707 Document: 00511452210 Page: 1 Date Filed: 04/20/2011




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

                                                 FILED
                                                                            April 20, 2011
                                     No. 10-50707
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

BRIAN EDWARD FRANKLIN,

                                                   Plaintiff-Appellant

v.

SHARON KELLER, Presiding Judge, Texas Court of Criminal Appeals;
LAWRENCE E. MEYERS, Judge, Texas Court of Criminal Appeals; TOM
PRICE, Judge, Texas Court of Criminal Appeals; PAUL WOMACK, Judge,
Texas Court of Criminal Appeals; MIKE KEASLER, Judge, Texas Court of
Criminal Appeals; BARBARA P. HERVEY, Judge, Texas Court of Criminal
Appeals; CHARLES R. HOLCOMB, Judge, Texas Court of Criminals Appeals;
CATHY COCHRAN, Judge, Texas Court of Criminal Appeals; CHERYL
JOHNSON, Judge, Texas Court of Criminal Appeals,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 1:09-CV-560


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
       Brian Edward Franklin, Texas prisoner # 703704, appeals the district
court’s dismissal without prejudice of his 42 U.S.C. § 1983 complaint against


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50707 Document: 00511452210 Page: 2 Date Filed: 04/20/2011

                                  No. 10-50707

nine members of the Texas Court of Criminal Appeals seeking declaratory and
injunctive relief. He argues that in ruling on his postconviction application, the
judges should have considered newly presented evidence of his innocence. A
complaint dismissed as frivolous pursuant to 28 U.S.C. § 1915(e) is reviewed for
an abuse of discretion. Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997).
      Franklin asserts that the district court erred in construing his complaint
as a habeas petition because he is not seeking to invalidate his conviction, but
is requesting prospective relief to change the evidence procedures used by the
appellate court. The majority of Franklin’s claims were properly raised in a
§ 1983 complaint because he is seeking to have the evidence procedures changed
by the court prior to his making another attempt to challenge his conviction. See
Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). Some of his allegations did directly
challenge the outcome of his postconviction proceeding and would have been
properly raised in a habeas petition. However, whether his claims sounded in
habeas or § 1983, Franklin is not entitled to relief because he has not shown a
constitutional violation. See Thomas v. Torres, 717 F.2d 248, 249 (5th Cir.1983).
      Franklin contends that the Texas appellate judges deprived him of his
state created liberty interest to present new evidence to prove his innocence by
failing to consider newly presented evidence because such evidence was available
for introduction at the time of his trial. However, the authorities cited by
Franklin contradict his argument because they reflect that in making a
postconviction claim of actual innocence, the petitioner must show that he is
relying on newly discovered evidence that was previously unavailable to him
even if he had acted with due diligence to obtain it. See Texas Code of Criminal
Procedure Article 11.07, Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App.
2002), superseded by statute, Texas Code of Criminal Procedure Article 11.0711,
§ 5(a)(3), as recognized in Ex parte Blue, 230 S.W.3d 151, 162 n. 46 (Tex. Crim.
App. 2007); State ex rel. Holmes v. Honorable Court of Appeals for the Third
District, 885 S.W.2d 389 (Tex. Crim. App. 1994), rejected in part by Elizondo, 947

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                                   No. 10-50707

S.W.2d at 205. The restriction to reliance on such newly discovered evidence to
prove innocence in a postconviction proceeding was approved by the Supreme
Court in District Attorney’s Office for Third Judicial District v. Osborne, 129 S.
Ct. 2319, 2320-21 (2009).
      Franklin has not shown that there is a state-created liberty interest in
having the appellate court consider in postconviction proceedings evidence of
innocence that was available for introduction at the time of trial. He has not
shown that the appellate judges used procedures that resulted in a violation of
his constitutional rights and, thus he has failed to allege a basis for relief under
§ 1983 or in a habeas proceeding. Thomas, 717 F.2d at 249.
      Because Franklin’s constitutional claims were dismissed as frivolous and
he is not entitled to habeas or civil rights relief, the district court erred in
dismissing the complaint without prejudice. See Marts v. Hines, 117 F.3d 1504,
1506 (5th Cir. 1997) (en banc). The dismissal of the complaint pursuant to
§ 1915(e) is AFFIRMED on alternate grounds, and the judgment is modified to
be WITH PREJUDICE. Id. at 1505-06.
      Franklin requested the appointment of counsel to present oral argument
in this case. In light of the frivolous nature of the claim, oral argument is not
granted. F ED. R. A PP. P. 34(a)(2)(A). The motion for appointment of counsel is
DENIED. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
      AFFIRMED AS MODIFIED.




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