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

                                                FILED
                                                                   January 4, 2010
                                 No. 09-50140
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

ARDELL NELSON, JR.,

                                             Plaintiff-Appellant

v.

PARDONS AND PAROLE CHAIRMAN; NATHANIEL QUARTERMAN,
D IR E C TO R , T E X A S D E P A R T M E N T O F C R IM IN A L JU S TIC E ,
CORRECTIONAL INSTITUTIONS DIVISION,

                                             Defendants-Appellees


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 1:08-CV-505


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Ardell Nelson, Jr., Texas prisoner # 482188, appeals the 28 U.S.C.
§ 1915(e)(2)(B)(i) dismissal as frivolous of his civil rights suit and moves for
appointment of counsel. Nelson argues that (1) procedures employed by the
Texas Board of Pardons and Paroles (the Parole Board) violated his due process
rights; (2) his ex post facto rights were violated by the retroactive application of


      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 09-50140

parole law; and (3) the Parole Board miscalculated the date on which he is to be
released to mandatory supervision. Our review is for an abuse of discretion. See
Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
      Nelson’s due process challenge to the procedures employed by the Parole
Board is not cognizable in a 42 U.S.C. § 1983 proceeding because Texas inmates
do not have a liberty interest in parole. See Allison v. Kyle, 66 F.3d 71, 73-74
(5th Cir. 1995). The dismissal of this claim as frivolous was therefore not an
abuse of discretion. See Siglar, 112. F.3d at 193. Nelson’s ex post facto claim is
similarly frivolous, as he has not shown that the retroactive application of the
complained of parole procedures will result in a longer period of incarceration
than those procedures in effect on the date he committed the offense. See Garner
v. Jones, 529 U.S. 244, 255 (2000); Allison, 66 F.3d at 74-75.
      Finally, Nelson’s claim that his mandatory supervised release date has
been incorrectly computed is not cognizable in a § 1983 action because it
challenges the duration of his confinement and, if granted, would entitle him to
accelerated release. See Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000); see
also Allison, 66 F.3d at 73. It should therefore be raised in a 28 U.S.C. § 2254
petition.
      Nelson’s appeal is without arguable merit and is dismissed as frivolous.
See 5 TH C IR. R. 42.2. Nelson is informed that the district court’s dismissal and
the dismissal of this appeal count as two strikes under § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Nelson is cautioned that, if he
accumulates three strikes, he will not be able to proceed in forma pauperis 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; MOTION FOR
APPOINTMENT OF COUNSEL DENIED.




                                         2
