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

                                                                FILED
                                                               March 13, 2008
                               No. 07-30367
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

MELVIN MASON

                                         Plaintiff-Appellant

v.

KATHLEEN BABINEAUX BLANCO, Governor; RICHARD L STALDER,
Secretary, Louisiana Department of Public Safety and Corrections; N BURL
CAIN, Warden of the Louisiana State Penitentiary; RONALD COX, Chairman
of Parole Board

                                         Defendants-Appellees


                Appeal from the United States District Court
                    for the Middle District of Louisiana
                          USDC No. 3:06-CV-660


Before KING, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
     Melvin Mason, Louisiana prisoner # 78559, appeals the dismissal of his 42
U.S.C. § 1983 complaint as frivolous. In his complaint, Mason alleged that he
was convicted in 1973 of aggravated rape and, as of 2004, had served 33 years
in prison. He asserted that he has received two favorable recommendations for
commutation of his sentence. Mason alleged that he applied for a commutation

     *
      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should not be published and is not precedent except under the limited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. 07-30367

of his life sentence in 2004, but his request was denied and the Louisiana Board
of Pardons (LBOP) informed him that he must wait six years to reapply. He
contended that this waiting period and new procedures for obtaining
commutation of a sentence were established by LA. REV. STAT. ANN. §§ 15:572.1
and 15:572.4D, which were not in effect at the time of his conviction. Mason
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 of the defendants, dismissed
Mason’s federal claims under 28 U.S.C. § 1915(e) as frivolous and declined to
exercise jurisdiction over Mason’s state law claim. The district court’s dismissal
of a complaint as frivolous is reviewed for abuse of discretion. Berry v. Brady,
192 F.3d 504, 507 (5th Cir. 1999).    A complaint is legally frivolous when it is
based on an indisputably meritless legal theory. Neitzke v. Williams, 490 U.S.
319, 325 (1989).
      Mason argues that his complaint is not frivolous because the application
of laws enacted after his conviction, including the waiting period established by
§ 15:572.4D, violates 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
Mason of current Louisiana law governing the pardon and sentence
commutation process violates the Ex Post Facto Clause.



                                        2
                                  No. 07-30367

      The Supreme Court, in Garner v. Jones, 529 U.S. 244, 255 (2000), and in
California Dept. of Corr. v. Morales, 514 U.S. 499 (1995), has issued decisions
addressing substantially similar claims challenging the application of changes
in the timing of parole reconsideration hearings as violative of the Ex Post Facto
Clause. Under the principles of the above cases, to state a nonfrivolous claim,
Mason was required to plead facts that would 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.
      Considering the above authorities, relevant Louisiana statutory
provisions, and the allegations of Mason’s complaint, we have determined that
Mason’s complaint is not frivolous. See Berry, 192 F.3d at 507. Accordingly, the
judgment of the district court is vacated, and the matter is remanded to the
district court for further proceedings.
      Given our disposition of this matter, which reflects no opinion on the
merits of Mason’s action, we have no occasion to decide whether the district
court erred by dismissing Mason’s complaint without conducting a
Spears hearing.
      VACATED AND REMANDED.




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