     Case: 11-60544     Document: 00511851538         Page: 1     Date Filed: 05/10/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 10, 2012
                                     No. 11-60544
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JEROME PETE SMITH,

                                                  Plaintiff-Appellant

v.

MISSISSIPPI PAROLE BOARD,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 4:11-CV-11


Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
        Jerome Pete Smith, Mississippi prisoner # 82058, filed the instant
42 U.S.C. § 1983 complaint to challenge, as a violation of due process, the
Mississippi Parole Board’s (the Board’s) denying him parole and the procedures
the Board followed in doing so. He also asserted an equal protection violation.
        Smith’s notice of appeal was not timely to appeal the district court’s
dismissal of his § 1983 complaint for failure to state a claim upon which relief
could be granted. See FED. R. APP. P. 4(a)(1)(A); Bowles v. Russell, 551 U.S. 205,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-60544

214 (2007). However, the notice of appeal was timely to appeal the district
court’s denial of his FED. R. CIV. P. 60(b) motion for reconsideration, in which he
argued that Mississippi’s parole statute creates a liberty interest protected
under the Fifth and Fourteenth Amendments.
      “[T]he denial of a Rule 60(b) motion does not bring up the underlying
judgment for review.” Matter of Ta Chi Navigation (Panama) Corp. S.A.,
728 F.2d 699, 703 (5th Cir. 1984). Therefore, this court’s review “is limited to
whether the District Court abused its discretion in denying the Rule 60(b)
motion.” Id.; Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 38 F.3d 1404, 1408
(5th Cir. 1994). “It is not enough that the granting of relief might have been
permissible, or even warranted--denial must have been so unwarranted as to
constitute an abuse of discretion.” Seven Elves, Inc. v. Eskenazi, 635 F.2d 396,
402 (5th Cir. 1981).
      Smith reurges his argument that the Mississippi parole statute creates a
liberty interest protected by the Fifth and Fourteenth Amendments and that he
was denied due process in the Board’s proceedings leading to denial of parole.
He also asserts an equal protection argument.
      A prisoner’s liberty interest in parole is defined by state statute. See
Board of Pardons v. Allen, 482 U.S. 369, 371 (1987). In Mississippi, the statutes
creating parole confer absolute discretion on the Parole Board. See MISS. CODE
ANN. §§ 47-7-3, 47-7-17; Scales v. Mississippi State Parole Bd., 831 F.2d 565,
565-66 (5th Cir. 1987). The Mississippi statutes do not create a liberty interest,
and federal due process rights are not implicated by the denial of parole and the
procedures by which parole is denied. See MISS. CODE ANN. §§ 47-7-3, 47-7-17;
Scales, 831 F.2d at 565-66; Irving v. Thigpen, 732 F.2d 1215, 1216 (5th Cir.
1984). Smith’s challenges to the Board’s procedures and its decision are without
merit.
      Smith argues that his equal protection rights were violated when the
Board revoked his classification status without affording him the same kind of

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                                   No. 11-60544

hearing allegedly given to other participants. Smith did not raise his equal
protection claim in his Rule 60(b) motion, and the district court’s rejection of that
claim is thus not part of the instant appeal. See Matter of Ta Chi Navigation
(Panama) Corp. S.A., 728 F.2d 699, 703 (5th Cir. 1984).
      AFFIRMED.




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