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that this opinion should not be published and is not precedent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

United States Court of Appeals

Fifth Circuit

FILED

December 10, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-20980

Conference Calendar

 

JERRY CHARLES PALMER,

Plaintiff-Appellant,

versus

TEXAS BOARD OF PAROLES; TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-03-CV-2722

--------------------

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Jerry Charles Palmer, Texas prisoner # 518865, appeals the

district court’s order denying his FED. R. CIV. P. 60(b) motion

after dismissing without prejudice his 42 U.S.C. § 1983 action,

construed as a 28 U.S.C. § 2254 application, for failure to

exhaust state remedies. Palmer argues that the district court

erred in construing his 42 U.S.C. § 1983 action as a 28 U.S.C. 

§ 2254 application. He argues that the district court made an

error of law and should have granted his post-judgment motion. 
No. 03-20980

-2-

He states that he is aggrieved by the procedures used by the

Parole Board to deny his application for parole and to consider

his parole. He states that he is not seeking and has never

sought release, but that he is only complaining about the

procedures used in the consideration and denial of his parole

application, and that it was proper for him to challenge these

procedures in a 42 U.S.C. § 1983 action.

Even if his claim is construed as a civil rights claim

properly filed under 42 U.S.C. § 1983, Palmer has not stated a

constitutional claim because he has no liberty interest in

obtaining parole in Texas, and so he has no claim for violation

of due process in the procedures attendant to his parole

decision. See Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995)

(denying claim that parole review procedures deny due process

because they give no advance written notice of hearings, no

opportunity to be heard, and deny access to materials and right

to be accompanied by person of choice); Allison v. Kyle, 66 F.3d

71, 73 (5th Cir. 1995) (denying claim that new parole review

procedures allowing set-offs of more than one year violated due

process).

In support of his Ex Post Facto claim, Palmer cites Lynce v.

Mathis, 519 U.S. 433, 441 (1997). Lynce was a 28 U.S.C. § 2254

case. If the parole procedures applied to Palmer have lengthened

his sentence, then the district court properly construed his

pleading as a 28 U.S.C. § 2254 application. Palmer refers
No. 03-20980

-3-

several times to what combination of good time and flat time

lead to eligibility for parole and/or completion of the sentence. 

Under Texas law, "[g]ood conduct time applies only to eligibility

for parole or mandatory supervision . . . and does not otherwise

affect an inmate’s term." TEX. GOVT. CODE ANN. § 498.003(a)

(Vernon’s 1998). A Texas prisoner’s sentence is not reduced by

good-time credit. See Ex parte Hallmark, 883 S.W.2d 672, 674

(Tex. Crim. App. 1994). Thus, to the extent that his claim

concerning the application of parole laws in an ex post facto

manner affects only his parole eligibility, then he has not

stated a constitutional claim because his punishment has not

been increased.

Palmer’s appeal is without arguable merit and is frivolous. 

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). 

Because the appeal is frivolous, it is DISMISSED. See 5th Cir.

R. 42.2.

Palmer is hereby informed that the dismissal of this

appeal as frivolous counts as a strike for purposes of 28 U.S.C.

§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.

1996) (“[D]ismissals as frivolous in the district courts or

the court of appeals count [as strikes] for the purposes of

[§ 1915(g)].”). We caution Palmer that once he accumulates three

strikes, he may not proceed in forma pauperis (IFP) in any civil

action or appeal filed while he is incarcerated or detained in
No. 03-20980

-4-

any facility unless he is under imminent danger of serious

physical injury. See 28 U.S.C. § 1915(g).

APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.