* 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that this opinion should not be published and is not precedent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. 98-60106

Summary Calendar

 

JARVIOUS COTTON,

Petitioner-Appellant,

versus

WALTER BOOKER; MIKE MOORE,

Respondents-Appellees.

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Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:98-CV-1-D-B

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December 18, 1998

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Jarvious Cotton, Mississippi prisoner # 34463, seeks a

certificate of appealability (COA) to appeal the denial of his

application for a writ of habeas corpus filed pursuant to 28

U.S.C. § 2254. Cotton argues that the district court failed to

address his equal protection claim that he was denied parole

based on his race. He also argues that he was denied due process

because the Parole Board abused its discretion by considering

improper factors.
No. 98-60106

-2-

Because Cotton has no liberty interest in obtaining parole

in Mississippi, he cannot complain of the denial of parole based

on his allegations of a denial of due process, abuse of

discretion, or consideration of false or improper factors. 

Scales v. Mississippi State Parole Bd., 831 F.2d 565, 565-66 (5th

Cir. 1987); see also Johnson v. Rodriguez, 110 F.3d 299, 308-09

(5th Cir. 1997). The district court’s judgment is AFFIRMED to

the extent that it denied relief on due process grounds.

Cotton’s allegations that he was denied equal protection

because he was denied parole based on his race presents a

different issue. Such an allegation, if proved, would constitute

denial of a cognizable federal right. Irving v. Thigpen, 732

F.2d 1215, 1218 (5th Cir. 1984). In order to make out an Equal

Protection claim, Cotton must prove the existence of purposeful

discrimination, which implies that the decisionmaker selected a

particular course of action at least in part because of the

adverse impact it would have on an identifiable group. Johnson,

110 F.3d at 306-07. Cotton must allege that he was denied parole

based upon discriminatory treatment due to his race or other

improper motive, and not just due to an inconsistent application

or result. See Thompson v. Patteson, 985 F.2d 202, 207 (5th Cir.

1993) (absent any allegation of improper motive, in the sense of

being treated differently because of some personal or class

characteristic such as race or religion, a mere claim of

inconsistent outcomes in particular, individual instances

furnishes no basis for relief on an equal protection claim).
No. 98-60106

-3-

Cotton alleged in the district court that he was denied

parole and that other white inmates similarly situated to him in

terms of sentence and parole factors were granted parole. Cotton

offered to prove his claim by a comparison of the parole records

of these other inmates. To the extent that Cotton’s claim is

based on a mere claim of inconsistent outcomes in particular,

individual instances, his equal protection claim fails. 

Thompson, 985 F.2d at 207. However, to the extent that his claim

is based on an allegation of improper motive, race, he has

asserted a constitutional claim cognizable in this habeas

proceeding.

The district court’s opinion completely ignored Cotton’s

allegations of racial discrimination. Cotton’s allegation was

not conclusional; he offered to prove his claim. We GRANT a COA

on the equal protection claim, we AFFIRM that part of the

judgment denying relief on due process grounds, and we VACATE the

district court’s judgment and REMAND this case, without requiring

further briefing, for consideration of Cotton’s allegations of a

denial of equal protection based on race.

COA GRANTED; Judgment AFFIRMED IN PART and VACATED IN PART

and case REMANDED.