John P. Ponder v. Larry Brownlee ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2648
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John P. Ponder, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Leroy Brownlee, Arkansas Post Prison *
Transfer Board; Larry Zeno, Arkansas *
Post Prison Transfer Board; William * [UNPUBLISHED]
Walker, Arkansas Post Prison Transfer *
Board; John Felts, Arkansas Post Prison *
Transfer Board; Carolyn Robinson, *
Arkansas Post Prison Transfer Board; *
John Belken, Arkansas Post Prison *
Transfer Board; Erma Hendrix, *
Arkansas Post Prison Transfer Board; *
Michael D. Huckabee, Governor, *
State of Arkansas, *
*
Appellees. *
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Submitted: June 28, 2007
Filed: July 5, 2007
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Before BYE, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
John Ponder appeals the district court’s 28 U.S.C. § 1915A pre-service
dismissal without prejudice of his 42 U.S.C. § 1983 action claiming that a change in
clemency guidelines constituted an ex post facto violation. We grant Ponder’s motion
to appeal in forma pauperis, and, upon de novo review, we reverse. See Cooper v.
Schriro, 189 F.3d 781, 783 (8th Cir. 1999) (per curiam) (standard of review). While
the district court found that Ponder’s claim should be brought in a habeas action, we
find that his claim was cognizable in a section 1983 action, as success on the claim
would not necessarily spell a speedier release, but would at most speed consideration
of his clemency application. See Wilkinson v. Dotson, 544 U.S. 74, 82 (2005).
Accordingly, we remand to the district court for consideration of Ponder’s claim on
the merits.
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