United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT November 5, 2004
Charles R. Fulbruge III
Clerk
No. 04-30410
CHRISTOPHER SEPULVADO,
Plaintiff-Appellant,
versus
LOUISIANA BOARD OF PARDONS AND PAROLE;
C.J. BELL, Board Member; PAUL BLANGE, III, Board Member;
LARRY CLARK, Board Member;
IRVIN L. MAGRI, JR., Board Member and Chair;
JULIA BRUMFIELD SIMS, Board Member; KATHLEEN BABINEAUX BLANCO,
Governor of Louisiana; RICHARD L. STALDER, Secretary of
Louisiana Department of Public Safety and Corrections,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
(3:03-CV-788-C)
Before SMITH, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
This action was filed pursuant to 42 U.S.C. § 1983.
Christopher Sepulvado, who received the death penalty in Louisiana
state court, appeals the dismissal, for lack of standing, of his
claim that the clemency process of the Louisiana Board of Pardons
and Parole does not meet minimal due process standards. AFFIRMED.
I.
*
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this opinion should not be published and is not precedent except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.
Sepulvado was convicted of first degree homicide and sentenced
to death in 1993. The conviction and sentence were affirmed on
direct appeal. State v. Sepulvado, 672 So. 2d 158 (La.), cert.
denied, 519 U.S. 1035 (1996).
Sepulvado was denied post-conviction relief in Louisiana
district court; the Louisiana Supreme Court affirmed in March 2000.
Later that month, Sepulvado filed for federal habeas relief. In
August 2002, the district court denied relief and a certificate of
appealability (COA). Our court denied Sepulvado’s COA-request.
Sepulvado v. Cain, 58 Fed. Appx. 595 (5th Cir.)(unpublished), cert.
denied, 124 S. Ct. 110 (2003).
In October 2003, Sepulvado filed this § 1983 action, seeking
declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and
2202 for claimed violations of his Eighth and Fourteenth Amendment
rights. He claims the Board’s clemency procedures deny him minimal
due process, see Ohio Adult Parole Authority v. Woodward, 523 U.S.
272, 289-90 (1998) (O’Connor, J., concurring), because: he is not
entitled to a hearing for his clemency application; and an
amendment to the Board’s procedures, subsequent to his conviction,
requires all applications to be filed within one year of exhaustion
of direct appeals. See LA. ADMIN. CODE tit. 22, § 101(D) (1998).
On 31 March 2004, the district court dismissed the action for
lack of standing because Sepulvado had not filed an application for
clemency. Two days later, Sepulvado applied for clemency. And, on
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21 April 2004, he filed a notice of appeal from the dismissal of
this action.
The clemency application was denied on 8 June 2004. The
stated reasons for the denial were the serious nature of the
offense and an insufficient amount of time served.
II.
Dismissal pursuant to FED. R. CIV. P. 12(b)(1) and (6) is
reviewed de novo. E.g., Herbert v. United States, 53 F.3d 720, 722
(5th Cir. 1995). The district court held: because Sepulvado had
not applied for clemency before filing this action, he lacked
standing to challenge the constitutionality of the clemency
process. Post-dismissal, Sepulvado applied for clemency; it was
denied. He contends, inter alia, that the district court abused
its discretion by not allowing him to amend his complaint. E.g.,
Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330
(1971).
A.
Pursuant to Article III of the Constitution, standing to bring
a claim requires, in part, that “the plaintiff must have suffered
an ‘injury-in-fact’ — an invasion of a legally protected interest
which is (a) concrete and particularized ... and (b) actual or
imminent not conjectural or hypothetical...”. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992). Because, prior to filing
this action, Sepulvado had not filed an application for clemency,
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his claims of injury based on any alleged constitutional defects in
the clemency process were speculative. Accordingly, the district
court did not err in dismissing for lack of subject-matter
jurisdiction, pursuant to Rule 12(b)(1).
B.
Sepulvado’s action was dismissed on 31 March 2004; his 2 April
2004 clemency application was denied on 8 June 2004. Sepulvado
maintains the district court abused its discretion by not allowing
him to amend his complaint post-denial of his clemency application.
His notice of appeal was filed, however, before the denial of that
application.
In his opposition to the motion to dismiss, Sepulvado
requested permission to amend if the court ruled he had to apply
for clemency. The record does not disclose if, or when, Sepulvado
moved to amend his complaint after applying for clemency or the
ground for the district court’s denial, if any. In any event, the
district court lost jurisdiction upon the notice of appeal’s being
filed. E.g., Rutherford v. Harris County, Tex., 197 F.3d 173, 190
(5th Cir. 1999).
C.
The Board moved to dismiss Sepulvado’s claims for both lack of
subject-matter jurisdiction and failure to state a claim. See FED.
R. CIV. P. 12(b)(1)and(6). The district court did not specify the
ground on which it based its decision, or whether the dismissal was
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with prejudice. Dismissal for lack of subject-matter jurisdiction,
pursuant to Rule 12(b)(1), is without prejudice; dismissal for
failure to state a claim, pursuant to Rule 12(b)(6), is with
prejudice. E.g., Hitt v. Pasadena, 561 F.2d 606, 608 (5th Cir.
1977). The dismissal was for lack of subject-matter jurisdiction
(standing); therefore, it is without prejudice.
D.
A critical issue the district court did not reach is whether
Sepulvado’s claims were properly filed pursuant to § 1983 or
whether they should have been presented in a habeas petition.
Because Sepulvado has already pursued an unsuccessful federal
habeas petition, if he cannot bring his claims under § 1983, he
will be subject to the certification requirements of 28 U.S.C. §
2244(b) for successive habeas petitions, should he again file the
claims in the instant action. This appeal having been resolved on
standing grounds, we do not reach whether habeas corpus or § 1983
is the proper basis for pursuing his claims.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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