UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 02-10033
Summary Calendar
MARK ALLEN SMITH,
Petitioner-Appellant,
VERSUS
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Northern District of Texas, Fort Worth Division
(4:01-CV-230-Y)
January 3, 2003
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Petitioner Mark Allen Smith appeals the district court’s
denial of his 28 U.S.C. § 2254 petition for habeas corpus pursuant
to a certificate of appealability granted by our court in an order
dated June 6, 2002. Smith argues that his procedural due process
*
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opinion should not be published and is not precedent except under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.
rights were violated when the state failed to give him notice that
it sought to use a pending driving while intoxicated charge to
prevent him from being assigned to an Intermediate Secure Facility
(ISF) after revocation of parole. We now affirm the district
court’s denial of habeas relief.
We review the district court’s denial of petitioner’s habeas
application de novo as to questions of law and for clear error as
to factual findings. Dyer v. Johnson, 108 F.3d 607, 609 (5th Cir.
1997). Under the Antiterrorism and Effective Death Penalty Act
(AEDPA) the district court may grant petitions for habeas corpus on
claims adjudicated on the merits in state court only where the
state determination was “contrary to” or an “unreasonable
application of” clearly established federal law as determined by
the Supreme Court. 28 U.S.C. § 2254(d). A § 2254 applicant may
also obtain relief on a claim adjudicated on the merits in state
court if the claim “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” § 2254(d)(2).
Here petitioner complains that his rights under Morrissey v.
Brewer, 408 U.S. 471, 488-89 (1972) were violated when the state
failed to give him notice of evidence it sought to use to deny him
post-revocation incarceration at an ISF. As the U.S. Supreme Court
has made clear since Meachum v. Fano, 427 U.S. 215, 224 (1976),
however, no due process rights arise in respect to a state’s choice
of incarceration facility, even though “the degree of confinement
in one prison may be quite different from that in another.”
Accordingly, the state’s failure to give notice of evidence it
would use to choose the incarceration facility does not raise any
due process constitutional concerns.
The judgment of the district court is AFFIRMED. Respondent’s
motion to supplement the record is DENIED.
AFFIRMED; MOTION DENIED.