                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 08-15320                ELEVENTH CIRCUIT
                                                          SEPTEMBER 17, 2009
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                   D. C. Docket No. 08-01966-CV-TWT-1

TRACY ANTHONY MILLER,



                                                           Petitioner-Appellant,

                                   versus

BUDDY D. NIX, JR.,
Chairman, Board of Pardons and Parole Member,
HILTON HALL, Warden,


                                                        Respondents-Appellees.


                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                            (September 17, 2009)

Before TJOFLAT, EDMONDSON and PRYOR, Circuit Judges.
PER CURIAM:

      Tracy Anthony Miller, a state prisoner, appeals pro se the dismissal of his

petition for a writ of habeas corpus. 28 U.S.C. § 2241. Miller, who is a paraplegic,

argued that the retroactive application of a Georgia statute, which denies parole to

an inmate unless the Board of Pardons and Paroles is satisfied that the inmate “will

be suitably employed in self-sustaining employment or that he will not become a

public charge,” Ga. Code Ann. § 42-9-42(c), violated his rights to due process and

equal protection, the Ex Post Facto clause, and increased his punishment in

violation of the Eighth Amendment. Miller also complained that the parole board

had used false information to determine his eligibility for parole; he had received

inadequate medical treatment; he had been mistreated and retaliated against by

prison officials; he suffered unusual delays in sending and receiving mail; and he

was denied access to legal materials. Miller asked the district court to order state

officials to comply with federal law, expunge information from his prison files,

and grant him a new parole hearing.

      The district court dismissed sua sponte Miller’s petition on the ground that

his claims were cognizable only in a civil rights action, 42 U.S.C. § 1983, but later

granted a certificate of appealability to address the merits of Miller’s ex post facto

argument. We vacated the order of the district court that granted Miller a



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certificate of appealability and remanded the case for the court to determine if

Miller could “challenge the denial of parole by the state parole board in a petition

for a writ of habeas corpus” and if Miller had exhausted his state remedies. Miller

v. Nix, No. 08-15320 (11th Cir. Apr. 23, 2009). On remand, the district court

again dismissed Miller’s petition and granted Miller a certificate of appealability

on the two grounds listed in our opinion.

       The district court did not err when it dismissed Miller’s petition. The

Supreme Court held in Wilkinson v. Dotson, 544 U.S. 74, 81–82, 125 S. Ct. 1242,

1247–48 (2005), that a state prisoner may file a civil rights complaint instead of a

habeas petition to challenge the constitutionality of procedures used to determine

his eligibility for parole “where success in the action would not necessarily spell

immediate or speedier release for the prisoner.” Miller questions the

constitutionality of a statute that allegedly restricts his eligibility for parole, a claim

cognizable under section 1983. Because habeas and civil rights actions are

mutually exclusive, Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006), the

district court did not err by determining that Miller’s claims cannot be brought in a

petition for a writ of habeas corpus.

       The dismissal of Miller’s petition is AFFIRMED.




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