John J. Breen, a prisoner in custody of the Texas Department of Corrections, has applied to this Court for leave to file in forma pauperis a petition for the writ of habeas corpus.
His application to proceed in forma pauperis is granted in this Court only and the Clerk is directed to file the petition.
Breen contends he suffered a denial of due process and equal protection of law because of discriminate use of the Texas habitual offender statute, Article 63 of the Vernon’s Ann.Texas Penal Code, by state authorities. He alleges that this statute, which provides a life sentence for persons convicted of three felonies less than capital, is used to harass, coerce and intimidate people at the will of the state. He cites the fact that he was convicted and sentenced to life as an habitual offender, after entering a plea of not guilty and asserting his right to defend himself. Twelve (12) other prisoners, who plead guilty to certain offenses, were not so convicted despite two or more prior felony convictions. None of these offenders is serving time under convictions which have any relation to that of petitioner.
A state may exercise selectivity in the enforcement of its habitual criminal statute without violating the Federal Constitution, unless the selectivity is based on an unjustifiable standard such as race, religion or similar arbitrary classification. Oyles v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). Petitioner reveals no such arbitrary classification.
There appearing to be no violation of petitioner’s constitutional rights, his petition for the writ of habeas corpus is denied.