Stoufflet v. Louisiana Department of Public Safety & Corrections

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                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                        F I L E D
          IN THE UNITED STATES COURT OF APPEALS
                                              August 21, 2007
                   FOR THE FIFTH CIRCUIT
                                                                    Charles R. Fulbruge III
                                                                            Clerk
                                No. 06-31170
                             Conference Calendar

DEWEY J STOUFFLET, JR

                                            Plaintiff-Appellant

v.

LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS;
RICHARD L STALDER, SECRETARY, DEPARTMENT OF PUBLIC
SAFETY AND CORRECTIONS, In His Individual and Official Capacities

                                            Defendants-Appellees


                 Appeal from the United States District Court
                     for the Middle District of Louisiana
                           USDC No. 3:06-CV-601


Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Dewey J. Stoufflet, Jr., Louisiana prisoner # 123510, moves this court for
permission to appeal in forma pauperis (IFP) from the dismissal of a civil rights
complaint challenging the constitutionality of restrictions on “good time” release
imposed by LA. REV. STAT. § 15:571.5(A)(1).        The district court construed
Stoufflet's pleading as sounding under 28 U.S.C. § 2254 and dismissed it without
prejudice due to Stoufflet's failure to exhaust his state remedies. The district


      *
      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should not be published and is not precedent except under the limited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. 06-31170

court denied Stoufflet's motion to appeal IFP and certified that the appeal was
not taken in good faith. By moving for IFP, Stoufflet is challenging the district
court's certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      Stoufflet does not directly dispute the district court's determination that
his claim sounds in habeas corpus and that he has failed to exhaust his state
habeas remedies. Instead, Stoufflet argues that his pleadings should not have
been dismissed because Louisiana does not provide a statutory mechanism for
him to raise his constitutional argument and because a writ of habeas corpus
would be time-barred.
      The district court did not err in construing Stoufflet's pleading as a § 2254
petition raising unexhausted claims. Jones v. Cunningham, 371 U.S. 236,
237-46 (1963); Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Thus, Stoufflet
has failed to show that his appeal is not frivolous. Accordingly, the motion to
proceed IFP on appeal is denied, and the appeal is dismissed. Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983); 5th Cir. R. 42.2.
      IFP DENIED; APPEAL DISMISSED.




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