__________

94-3662

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Richard T. Walker, John K. Hake, *

*

Plaintiffs-Appellants; *

*

Joseph T. Salazar, *

*

Plaintiff; *

* Appeal from the United States

v. * District Court for the

* District of Nebraska

Governor Ben Nelson; Harold W. *

Clarke, Department of * [UNPUBLISHED]

Corrections; Gary Grammer, *

Hastings Corrections; and *

Donald Stenberg, Attorney *

General; *

*

Defendants-Appellees. *

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Submitted: November 16, 1995

Filed: December 1, 1995

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Before HANSEN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

__________

PER CURIAM.

Richard T. Walker and John K. Hake appeal from a judgment rejecting

their equal protection and procedural due process challenges to a Nebraska

commutation policy which treats persons convicted of second degree murder

differently from those convicted of first degree murder. They appeal only

the equal protection
 The Honorable Warren K. Urbom, Senior United States 1

District Judge for the District of Nebraska.

Because plaintiff Joseph Salazar presented no evidence to

the district court that he had ever applied for commutation of

his sentence, he was dismissed as a party. He did not appeal.

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ruling of the district court. We affirm. 1

Both Walker and Hake were convicted of second degree murder some

thirty years ago and received sentences of ten years to life. Both have

been paroled several times but have been returned to custody because of

parole violations; Walker is currently on parole again. Each has been

denied commutation by the Nebraska Pardons Board at least twice. They

allege that these denials violated their constitutional rights.

Under Nebraska law, parole eligibility is computed based on an

inmate's minimum sentence, and a mandatory release date is calculated based

on the inmate's maximum sentence adjusted for good time. This results in

differing consequences for first and second degree murderers.

Second degree murderers sentenced to ten years to life are eligible

for parole at some point, but they never receive a mandatory discharge date

because good time cannot be subtracted from a term of life. Second degree

murderers may seek a fixed maximum term by applying for commutation of

their sentences. If successful, they would receive a mandatory discharge

date. At least thirty-nine applications for commutation were made by

second degree murderers between January 1980 and March 1993, but the

pardons board granted none. It appears that most second degree murderers

are eventually discharged from custody voluntarily after several successful

years on parole. If a second degree murderer without a commuted sentence

is not discharged from parole, however, he must serve the entire life term.
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First degree murderers in Nebraska are sentenced either to death or

to life in prison, called life to life. Those sentenced to life to life

have no minimum term so they are never eligible for parole unless they

receive a commutation. The pardons board granted 18 of 113 commutation

applications from first degree murderers between January 1980 and March

1993. When it has granted an application for commutation, the board has

given not only a minimum sentence, making parole possible, but also a

maximum term (e.g. 35-60 years) which provides a mandatory discharge date.

Walker and Hake brought this action against certain Nebraska

officials who play a role in commutation, alleging that the denial of

commutation to all second degree murderers, but not to all first degree

murderers, was a violation of their equal protection rights under the

Fourteenth Amendment. Following a bench trial, the district court found

that first and second degree murderers serving life sentences in Nebraska

are not similarly situated. A necessary element of their equal protection

claim was therefore missing. City of Cleburne, Texas v. Cleburne Living

Center, 473 U.S. 432, 439 (1985).

After a thorough review of the record, we conclude that the findings

of the district court were not clearly erroneous and that it correctly

determined there was no equal protection violation on the facts of this

case. We therefore affirm the judgment without further discussion. See

8th Cir. R. 47B.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.