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

                                                                    FILED
                                                                  January 16, 2009
                                No. 07-30397
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk
PRENTICE ROBINSON

                                            Plaintiff-Appellant

v.

KATHLEEN BABINEAUX BLANCO, Governor; RICHARD STALDER,
SECRETARY, LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND
CORRECTIONS; 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-718


Before REAVLEY, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
      Prentice Robinson, Louisiana prisoner # 75065, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint against the defendants as frivolous
and for failure to state a claim on which relief can be granted. In his complaint,
Robinson alleged that he was convicted around 1972 of aggravated rape and, as
of 1996, had served 24 years in prison. He asserted that although he received


      *
      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should not be published and is not precedent except under the limited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. 07-30397

a favorable recommendation for commutation of his sentence in 1996, the
Governor left office before taking action on the recommendation, and the
Louisiana Board of Pardons (LBOP) informed him that he needed to wait five
additional years to reapply. He contended that this waiting period and the new
procedures for obtaining commutation of his sentence were established by the
Louisiana Constitution of 1974 and “new laws,” including LA. REV. STAT. ANN.
§§ 15:572.1 and 15:572.4(D), which were not in effect at the time of his
conviction. Robinson claimed that the application of laws enacted following his
conviction to his sentence 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 Robinson’s federal claims under 28
U.S.C. § 1915(e)(2)(B) as frivolous and for failure to state a claim and declined
to exercise jurisdiction over Robinson’s state law claim. The district court also
certified that Robinson’s appeal was not taken in good faith.
      Robinson argues that the district court erred in dismissing his claims as
frivolous and for failure to state a claim because the application of laws enacted
after his conviction, including the waiting period established by § 15:572.4D, to
his sentence violates the Ex Post Facto Clause. His motion for leave to proceed
in forma pauperis (IFP) on appeal has been carried with the case pursuant to
this court’s prior order.
      Robinson’s IFP motion is construed as a challenge to the district court’s
certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
This court may authorize Robinson to proceed IFP on appeal if the appeal is not
frivolous or malicious. See § 1915(a)(1); Holmes v. Hardy, 852 F.2d 151, 153 (5th
Cir.1988).
      A dismissal under § 1915(e)(2)(B)(ii) for failure to state a claim upon which
relief can be granted is reviewed under the same de novo standard as a dismissal
under FED. R. CIV. P. 12(b)(6). Black v. Warren, 134 F.3d 732, 733-34 (5th Cir.
1998). The dismissal of an IFP complaint as frivolous typically is reviewed for

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abuse of discretion; however, where the district court also finds that the
complaint fails to state a claim, as here, it is reviewed de novo. See Geiger v.
Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
      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
Robinson 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), 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,
Robinson 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.” Garner, 529 U.S. at 255.
      Considering the above authorities, relevant Louisiana statutory
provisions, and the allegations of Robinson’s complaint, we have determined that
Robinson’s complaint is not frivolous and does not fail to state a claim. See In
re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007); Geiger,
404 F.3d at 373. Accordingly, Robinson’s IFP motion is granted, the judgment
of the district court is vacated, and the matter is remanded to the district court
for further proceedings.
      IFP MOTION GRANTED; VACATED AND REMANDED.



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