Pohl v. Livingston , 241 F. App'x 180 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 10, 2007
Charles R. Fulbruge III
Clerk
No. 06-40850
Summary Calendar
PHILIP J. POHL,
Plaintiff-Appellant,
versus
BRAD LIVINGSTON; PAMELA WILLIAMS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:06-CV-4
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Before DeMOSS, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
Philip J. Pohl, Texas prisoner # 408856, appeals the
dismissal of his 42 U.S.C. § 1983 action as frivolous. Pohl
asserts that he has a “liberty interest” in parole. He asserts,
however, that the appellees have violated his rights under
Texas law and the Constitution because they are using “an
unconstitutionally vague code to do away with parole.” He
further asserts that his due process rights have been violated
because he has been denied meaningful review. He contends that
*
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this opinion should not be published and is not precedent except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.
No. 06-40850
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the appellees focus only on the nature of the crime of conviction
when making a parole determination.
To obtain relief under § 1983, the plaintiff must
demonstrate the violation of a constitutional right. Allison v.
Kyle, 66 F.3d 71, 73 (5th Cir. 1995). This court has determined
that Texas law does not create a liberty interest in parole
that is protected by the Due Process Clause. Orellana v. Kyle,
65 F.3d 29, 31-32 (5th Cir. 1995); see also Johnson v. Rodriguez,
110 F.3d 299, 308 (5th Cir. 1997). Thus, to the extent that Pohl
seeks relief regarding alleged due process violations resulting
from the parole review process, the district court did not abuse
its discretion in denying his claim. See Orellana, 65 F.3d
at 32.
Pohl also contends that he has a “liberty interest” in
mandatory supervision. Specifically, he contends that when he
was sentenced in 1985, a life sentence was equivalent to 60 years
and an inmate was eligible for mandatory supervision when he
served 20 years. Pohl contends because he has served 21 years,
he is eligible for mandatory supervision. He contends that the
defendants are violating the Due Process and Ex Post Facto
Clauses by applying harsher parole laws enacted after the date of
his conviction.
As the district court determined, Pohl’s argument is
foreclosed by Arnold v. Cockrell, 306 F.3d 277, 279 (5th Cir.
2002), which held that an inmate serving a life sentence is not
No. 06-40850
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eligible for release under the 1977 version of the Texas
mandatory supervision statute and, thus, does not have a
constitutionally protected interest in such release. This court
based its decision on a similar determination by the Texas Court
of Criminal Appeals in Ex parte Franks, 71 S.W.3d 327 (Tex. Crim.
App. 2001), concerning the 1981 version of the Texas mandatory
supervision statute. See id.
Pohl further argues that the elimination of annual parole
reconsideration hearings violates the Ex Post Facto Clause. He
contends that he has been given a three-year set-off, as opposed
to an annual review. Pohl characterizes this three-year set-off
as a “new 3 year sentence[].”
Ex post facto principles apply to the procedures for
reviewing a prisoner's eligibility for parole. See Allison,
66 F.3d at 74. However assuming arguendo that Pohl’s parole
eligibility is governed by the parole review law in place at the
time of his sentence, annual parole review was not mandated. See
id. Thus, Pohl has not shown an ex post facto or other
constitutional violation. See id.
Pohl’s appeal “lacks an arguable basis in law or fact.”
Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998). Thus, it is
dismissed as frivolous. See 5TH CIR. R. 42.2. For purposes of
the three-strikes provision of 28 U.S.C. § 1915(g), the district
court’s dismissal under 28 U.S.C. § 1915A counts as a strike, and
the dismissal of this appeal as frivolous counts as a strike.
No. 06-40850
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See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Accordingly, Pohl is warned that if he accumulates three strikes
he may not thereafter proceed IFP in any civil action or appeal
filed while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See
§ 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.