IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50630
Summary Calendar
ERANSOM MILLER, JR.,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-99-CV-359
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February 10, 2000
Before JONES, DUHÉ, and STEWART, Circuit Judges.
PER CURIAM:1
Eransom Miller, Jr., Texas prisoner #688067, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 action. Miller
argues that the district court erred in its determination that his
claims must be presented in a § 1983 action rather than a 28 U.S.C.
§ 2254 habeas petition, the format he originally used to file his
claims. However, he asks this court to treat his petition as a
claim for relief under § 1983 if a habeas petition was the wrong
1
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that this opinion should not be published and is not precedent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.
vehicle for his claims. Because that is what the district court
did, this argument need not be addressed.
Miller argues that his due process rights were violated when
he was not reviewed for parole before February 16, 1998, his parole
eligibility date. He also argues that the district court erred in
dismissing his claims as moot. The district court correctly found
that, insofar as Miller was asserting that he was spending extra
time in prison unnecessarily, his claim mooted by the subsequent
denial of parole. Moreover, the Due Process Clause does not
protect Miller’s alleged right to be placed into the parole review
process prior to his parole eligibility date. Texas prisoners
have no protected liberty interest in parole, thus they cannot
mount a challenge against any state parole review procedure on
procedural or substantive due process grounds. See Johnson v.
Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997).
Miller argues that the district court abused its discretion by
not appointing counsel to represent him and by not allowing him to
expand the record via discovery. This claim is frivolous. A §
1983 complainant is not entitled to appointment of counsel absent
exceptional circumstances. See Ulmer v. Chancellor, 691 F.2d 209,
212 (5th Cir. 1982). Miller has adequately presented his claims
thus far without counsel, and he does not presently demonstrate
exceptional circumstances warranting the appointment of counsel.
As for his claim that discovery should have been allowed, Miller
has not articulated relevant, discoverable material to which he was
denied access.
Finally, Miller argues that his equal protection rights were
violated because other inmates were reviewed for parole in a timely
fashion, and he was not. In order to state a claim for the denial
of equal protection, Miller would have had to allege that he was
treated unfavorably in the parole review process due to his race or
other improper motive, and not just due to an inconsistent
application or result. See Thompson v. Patterson, 985 F.2d 202,
207 (5th Cir. 1993). Miller has not made such allegations of
improper motive.
The district court did not err in dismissing Miller’s action.
AFFIRMED.