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

                                                                            FILED
                                                                         January 26, 2009
                                     No. 08-40291
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

JAMES C STEWART

                                                  Plaintiff-Appellant

v.

CHRISTIAN MELTON CRAIN; BRYAN COLLIER; TROY FOX; NATHANIEL
QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; LARRY LEFLORE

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:07-CV-543


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       James C. Stewart, Texas prisoner # 476867, appeals from the dismissal of
his 42 U.S.C. § 1983 complaint as frivolous pursuant to 28 U.S.C. § 1915A(b)(1).
Stewart alleges that the district court erred in concluding that he was ineligible
for mandatory supervision because he is serving a sentence of life imprisonment.
Stewart asserts that the plain language of the Texas statute governing



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-40291

mandatory supervision does not exclude life-sentenced inmates from early
release, and he argues that the district court erred in concluding that it is
mathematically impossible to determine a mandatory supervision release date
for a life sentence; he specifically asserts that a life sentence is equal to 60 years
of imprisonment under Texas state law. Stewart further contends that the
defendants have improperly deprived him of his previously accrued good-time
credits by failing to calculate the date upon which his good-time credits would
render him eligible for release to mandatory supervision. Stewart also alleges
that the defendants’ determination that he is ineligible for release to mandatory
supervision is a violation of the Ex Post Facto Clause.
      The district court is directed to dismiss a complaint filed by a prisoner if
the complaint is frivolous or fails to state a claim upon which relief may be
granted. See 28 U.S.C. § 1915A(b)(1). Because the district court dismissed
Stewart’s claims pursuant to § 1915A, our review is de novo. Geiger v. Jowers,
404 F.3d 371, 373 (5th Cir. 2005). A complaint is frivolous “‘if it lacks an
arguable basis in fact or law.’” Berry v. Brady, 192 F. 3d 504, 507 (5th Cir. 1999)
(quoting Talib v. Gilley, 138 F. 3d 211, 213 (5th Cir. 1998)).
      At the time of Stewart’s offense, the Texas statute governing eligibility for
release to mandatory supervision provided that an inmate not under sentence
for death “shall be released to mandatory supervision” when the calendar time
he has served plus any accrued good conduct time equal the maximum term to
which he was sentenced.” TEX. CRIM. PROC. CODE ANN. art. 42.12, § 15(c)
(Vernon 1981). In Ex Parte Franks, 71 S.W.3d 327, 327-28 (Tex. Crim. App.
2001) the Texas Court of Criminal Appeals (TCCA) determined that the Texas
mandatory supervision statute at issue in the present case does not permit a life-
sentenced inmate to be eligible for release to mandatory supervision. The state
court construed the plain language of the mandatory supervision statute and
explained that “it is mathematically impossible to determine a mandatory



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supervision release date on a life sentence because the calendar time served plus
any accrued good conduct time will never add up to life.” Id. at 328.
      In Arnold v. Cockrell, 306 F.3d 277, 279 (5th Cir. 2002), we held that a life-
sentenced inmate is not eligible for release to mandatory supervision under the
1977 version of the Texas mandatory supervision statute. We determined that
the TCCA’s reasoning in Franks was determinative because the 1977 version of
the mandatory supervision statute was substantively identical to the version of
the law at issue in Franks. See Arnold, 306 F.3d at 279. We particularly noted
that it was not our function to review a state’s interpretation of its own law, and
we therefore deferred to the TCCA’s reading of the statute. Id. Stewart’s
assertions concerning his eligibility for mandatory supervision therefore are
foreclosed by our decision in Arnold.
      Stewart’s contention that the defendants improperly deprived him of his
previously accrued good-time credits is equally unavailing. As discussed above,
this court has held that a life-sentenced inmate is not eligible for release to
mandatory supervision. See Arnold, 306 F.3d at 279. Accordingly, in light of his
ineligibility for early release, Stewart has not demonstrated that the defendants
erred by failing to calculate the date upon which his good-time credits would
render him eligible for release to mandatory supervision. See id. Furthermore,
to the extent that Stewart argues that the defendants’ actions were tantamount
to a due process violation, he also has not shown that he is entitled to relief.
Because Stewart is ineligible for early release under the Texas mandatory
supervision scheme, he has no constitutionally protected interest in previously
earned good-time credits. See Teague v. Quarterman, 482 F.3d 769, 773-77 (5th
Cir. 2007); Malchi v. Thaler, 211 F.3d 953, 956 (5th Cir. 2000).
      Finally, Stewart did not raise his Ex Post Facto claims in the district
court. Thus, the arguments represent issues that Stewart is asserting for the
first time on appeal. This court is prohibited from considering new theories of



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relief on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th
Cir. 1999).
      Stewart’s appeal lacks an arguable basis in law or fact. Thus, it is
dismissed as frivolous. See 5TH CIR. R. 42.2. For purposes of the three-strikes
provision of 28 U.S.C. § 1915(g), the district court’s dismissal under 28 U.S.C.
§ 1915A counts as a strike, and the dismissal of this appeal as frivolous counts
as a strike. See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Accordingly, Stewart is warned that if he accumulates three strikes he may not
thereafter proceed IFP in any civil action or appeal filed while he is incarcerated
or detained in any facility unless he is under imminent danger of serious
physical injury. See § 1915(g).
      APPEAL DISMISSED; SANCTION WARNING ISSUED.




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