Nero v. Blanco

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 12, 2007
No. 07-30043
Summary Calendar Charles R. Fulbruge III
Clerk
FREDDIE NERO
Plaintiff-Appellant
v.
KATHLEEN BABINEAUX BLANCO, Governor; RICHARD STALDER,
SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS;
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY; RONALD COX,
Chairman, Pardon Board
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:06-CV-658
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Freddie Nero, Louisiana prisoner # 75247, moves this court for leave to
proceed in forma pauperis (IFP) on appeal following the district court’s dismissal
with prejudice of his pro se and IFP civil rights complaint. The district
court dismissed the complaint for failure to state a claim. See
*
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should not be published and is not precedent except under the limited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. 07-30043
28 U.S.C. § 1915(e)(2)(B)(ii). We construe Nero’s motion as a challenge to the
district court’s determination that the appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). A dismissal for failure to
state a claim is reviewed de novo. Black v. Warren, 134 F.3d 732, 734
(5th Cir. 1998).
Nero argues that changes to the Louisiana Constitution and the repeal of
LSA-R.S. 15:571.7 violated ex post facto principles under the state and federal
constitutions. Nero’s claim is in the nature of habeas relief because he is
challenging the duration of his imprisonment rather than the conditions of his
prison life. See Preiser v. Rodriguez, 411 U.S. 475, 499-500 (1973). The new
amendment to the state constitution requiring the Board of Parole’s approval
prior to the governor’s commutation of sentence does not alter the definition of
a crime; it does not increase Nero’s penalty in any way. California Dep’t of
Corrs, 514 U.S. 499, 506 n.3 (1995). Rather, the change in the state constitution
constitutes a new procedural rule that does not violate any ex post facto
principles. Likewise, the repeal of LSA-R.S. 15:571.7 does not constitute an ex
post facto violation because the statute did not afford a constitutional right to a
pardon or an early release from a valid sentence. Dunn v. Maggio, 712 F.2d 998,
1001-02 (5th Cir. 1993).
Accordingly, Nero has failed to present a nonfrivolous issue for appeal.
His motion for IFP is denied, and the appeal is dismissed as frivolous. See
Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
MOTION FOR IFP DENIED; APPEAL DISMISSED.
2