UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 02-10033 Summary Calendar

MARK ALLEN SMITH,

Petitioner-Appellant,

VERSUS

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court For the Northern District of Texas, Fort Worth Division (4:01-CV-230-Y) January 3, 2003

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Petitioner Mark Allen Smith appeals the district court’s

denial of his

petition for habeas corpus pursuant

to a certificate of appealability granted by our court in an order

dated June 6, 2002. Smith argues that his procedural due process

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. rights were violated when the state failed to give him notice that

it sought to use a pending driving while intoxicated charge to

prevent him from being assigned to an Intermediate Secure Facility

(ISF) after revocation of parole. We now affirm the district

court’s denial of habeas relief.

We review the district court’s denial of petitioner’s habeas

application de novo as to questions of law and for clear error as

to factual findings. Dyer v. Johnson,

(5th Cir.

1997). Under the Antiterrorism and Effective Death Penalty Act

(AEDPA) the district court may grant petitions for habeas corpus on

claims adjudicated on the merits in state court only where the

state determination was “contrary to” or an “unreasonable

application of” clearly established federal law as determined by

the Supreme Court.

(d). A § 2254 applicant may

also obtain relief on a claim adjudicated on the merits in state

court if the claim “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” § 2254(d)(2).

Here petitioner complains that his rights under Morrissey v.

Brewer,

(1972) were violated when the state

failed to give him notice of evidence it sought to use to deny him

post-revocation incarceration at an ISF. As the U.S. Supreme Court

has made clear since Meachum v. Fano,

(1976),

however, no due process rights arise in respect to a state’s choice

of incarceration facility, even though “the degree of confinement in one prison may be quite different from that in another.”

Accordingly, the state’s failure to give notice of evidence it

would use to choose the incarceration facility does not raise any

due process constitutional concerns.

The judgment of the district court is AFFIRMED. Respondent’s

motion to supplement the record is DENIED.

AFFIRMED; MOTION DENIED.