568 F. 2d 1119 - Long v. Briscoe

This appeal is taken from an order of the district court dismissing the civil rights complaint of this Texas state prisoner. We affirm.

The appellant, convicted of murder, is serving sentences imposed in 1959 totaling 198 years. After parole had been denied seven times, the Parole Board recommended appellant for parole in early 1977. On April 25, 1977, however, the Governor rejected parole for these reasons:

4. Lack of positive parole orientation or motivation

Appellant filed his civil rights complaint for declaratory and injunctive relief against the appellee, individually and as Governor of Texas. He contends that consideration of his past record as an item for parole eligibility is double jeopardy. He also contends that the Governor has given weight to factors which should not have been considered in overriding the decision of the Board. The district court dismissed on the basis of Cruz v. Skelton, 543 F.2d 86 (5th Cir. 1976), but granted leave to appeal in forma pauperis.

This Court has previously held that the participation of the Governor of Texas in the parole process does not present a federal constitutional issue. Shaw v. Briscoe, 541 F.2d 489 (5th Cir. 1976), cert. denied, 430 U.S. 933, 97 S.Ct. 1556, 51 L.Ed.2d 778 (1977). Pursuant to this Court's opinion in Brown v. Lundgren, 528 F.2d 1050 (5th Cir.), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976), the factors used to determine federal parole cannot be reviewed in federal court absent a showing of arbitrariness or abuse of discretion. Assuming without deciding that such a standard for federal review could be equally applicable to the Governor in state parole proceedings, appellant has alleged insufficient facts to show arbitrariness or abuse of discretion.

AFFIRMED.