__________ 94-3662

__________ 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States v. * District Court for the * District of Nebraska Governor Ben Nelson; Harold W. * Clarke, Department of * [UNPUBLISHED] Corrections; Gary Grammer, * Hastings Corrections; and * Donald Stenberg, Attorney * General; * * Defendants-Appellees. *

__________ Submitted: November 16, 1995 Filed: December 1, 1995

__________ 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 proces s challenges to a Nebraska commutation policy wh ich 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. -2- ruling of the district court. We affirm. 1

Bo th Walker and Hake were convicted of second degree murder som e thirty years ago and received sentences of ten years to life. Both have been paroled several times but have been returned to custody because o f parol e violations; Walker is currently on parole again. Each has bee n denie d commutation by the Nebraska Pardons Board at least twice. The y allege that these denials violated their constitutional rights.
Under Nebraska law, parole eligibility is computed based on a n inmate's minimum sentence, and a mandatory release date is calculated base d on the inmate's maximum sentence adjusted for good time. This results in differing consequences for first and second degree murderers.
Second de gree murderers sentenced to ten years to life are eligible for parole at some point, but they never receive a mandatory discharge dat e because good time cannot be subtracted from a te rm of life. Second degree murde rers may seek a fixed maximum term by applying for commutation o f their sentences. If successful, they would receive a mandatory discharge date. At least thirty-nine applications for commutation were made b y seco nd degree murderers between January 1980 and March 1993, but th e pardons board grantednone. It appears that most second degree murderers are eventually discharged from custody voluntarily after several successfu l 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
.

### -3- First deg ree 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 the y receive a commutation. The pardons board granted 18 of 113 commutatio n applic ations from first degree murderers between January 1980 and Marc h 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.
Walk er and Hake brought this action against certain Nebrask a officials who play a role in commutation, alleging that the denial o f commutation to all second degree murderers, but not to all first degre e murdere rs, was a violation of their equal protection rights under th e Fourteenth Amendment. Following a bench trial, the district court found that first and seconddegree murderers serving life sentences in Nebraska are not similarly situated. A necessary element of their equal protection claimwas therefore missing. City of Cleburne, Texas v. Cleburne Living Center , 473 U.S. 432, 439 (1985). After a thorough review of the recor d, we conclude that the findings of th e district court were not clearly erroneous and that it correctl y determined there was no equal protection violation on the facts of thi s 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.