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that this opinion should not be published and is not precedent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.

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
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.