                                                       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.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                        USDC No. 9:06-CV-4
                       --------------------

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this opinion should not be published and is not precedent except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
                                -2-

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
                                  -3-

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
                               -4-

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.
