United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 26, 2004
Charles R. Fulbruge III
Clerk
No. 04-60179
Summary Calendar
LEROY WELCH,
Plaintiff-Appellant,
versus
CHRISTOPHER EPPS, Commissioner of Corrections;
MICHAEL WILSON, Superintendent, Mississippi State
Penitentiary; STANLEY FLAGG, Associate Warden,
Unit 24; LETITIA ROACH, Offender Services,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:04-CV-12-P-A
Before HIGGINBOTHAM, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
Leroy Welch, a Mississippi prisoner (# 47598), challenges
the district court’s denial of his application to proceed in forma
pauperis (“IFP”) on appeal following the district court’s dismissal
of his 42 U.S.C. § 1983 complaint for failure to state a claim upon
which relief may be granted. Welch is effectively challenging the
district court’s certification that he should not be granted IFP
*
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opinion should not be published and is not precedent except under the limited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.
status because his appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3);
FED. R. APP. P. 24(a).
Welch has asserted that a new “points system” for
determining custodial classification has resulted in a negative
change in his own classification, in violation of his rights under
the Due Process, Ex Post Facto, and Double Jeopardy Clauses. The
district court properly concluded that a due-process claim was
barred by Sandin v. Conner, 515 U.S. 472, 484 (1995). Although the
court did not explicitly address Welch’s allegations under an
ex post facto or double-jeopardy framework, he has failed to state
claims under those constitutional clauses as well. Welch has cited
no decisional authority, and we are aware of none, which holds that
a mere change in custodial status either amounts to an “increase”
in the “measure of punishment” for ex post facto purposes, see,
e.g., Garner v. Jones, 529 U.S. 244, 249-50 (2000), or qualifies as
a second “punishment” for double-jeopardy purposes. See Hudson v.
United States, 522 U.S. 93, 98-99 (1997); United States v. Galan,
82 F.3d 639, 640 (5th Cir. 1996).
Welch has failed to show that his complaint presented
non-frivolous issues for appeal. Accordingly, we uphold the
district court’s order certifying that the appeal is not taken in
good faith. Welch’s request for IFP status is DENIED, and his
appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202
& n.24; 5TH CIR. R. 42.2. The dismissal of this appeal as frivolous
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counts as a “strike” for purposes of 28 U.S.C. § 1915(g), as does
the district court’s dismissal of his complaint for failure to
state a claim. See Adepegba v. Hammons, 103 F.3d 383, 388 (5th
Cir. 1996). Welch is cautioned that if he accumulates three
strikes, he will not be permitted to 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 28 U.S.C. § 1915(g).
IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; THREE-STRIKES
WARNING ISSUED.
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