F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 29, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
LEE TRAYLOR,
Plaintiff - Appellant, No. 06-6314
v. W .D. Oklahoma
TER RY JEN KS, (D.C. No. CIV-05-1167-R)
Defendant - Appellee.
OR D ER AND JUDGM ENT *
Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Lee Traylor, appearing pro se, appeals from the district court’s dismissal of
his complaint brought pursuant to 42 U.S.C. § 1983. He claims constitutional
violations arise from statutory changes which reduced his parole consideration
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
from every year to every three years. Finding the appeal frivolous, we dismiss.
Background
Traylor is serving a life sentence in the O klahoma corrections system for a
1962 conviction of first degree rape. He was paroled in December 1973, but
comm itted another offense for which he was sentenced to two years imprisonment
in 1979. In 1980, after completing his two year sentence, he was rebilled to
complete his life sentence. At the time of his 1962 conviction, an inmate’s parole
opportunities were governed by the Forgotten M an Act, Okla. Stat. tit. 57, § 332.7
(1971). According to Traylor, under the Forgotten M an Act he was eligible for
parole consideration every twelve months.
The Oklahoma legislature repealed the Forgotten M an Act in 1997 and
replaced it w ith the Truth in Sentencing Act. Okla. Stat. tit. 57, § 332.7 (1997).
Under the Truth in Sentencing Act, a person who committed a violent crime
before July 1, 1998, and has been denied parole, is eligible for reconsideration at
least once every three years. Okla. Stat. tit. 57 § 332.7 (A) & (D)(1). On October
5, 2005, Traylor filed a 42 U.S.C. § 1983 complaint alleging the Oklahoma
Pardon & Parole Board’s application of the Truth in Sentencing A ct to his case
violates his substantive due process rights under the Fourteenth Amendment and
the ex post facto clause of the United States Constitution, art. I, § 10, cl. 1. In his
complaint Traylor stated the B oard scheduled his parole reconsideration every
three years since the passage of the Truth in Sentencing Act (1999, 2002, 2005
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and currently 2008) rather than the annual review to which he claims to be
entitled.
The district court referred the case to the magistrate judge pursuant to 28
U.S.C. § 636. The magistrate issued an order for Traylor to show cause why his
claim should not be dismissed because it was filed outside the two year statute of
limitations. In response, Traylor argued each scheduling of parole
reconsideration constituted a separate offense and, because he filed his claim
within tw o years of the last rescheduling in 2005, his claim was timely.
On August 30, 2006, pursuant to 28 U.S.C. §§ 636(b)(1)(C) and 1915A(a),
the m agistrate judge issued a thorough report and recommendation. He
determined Traylor was aware of the factual predicate for his claim by 2000,
when he was not granted an annual review. See Brown v. Georgia Bd. Of
Pardons & Paroles, 335 F.3d 1259, 1262 (11th Cir. 2003) (“[S]uccessive denials
of parole do not involve separate factual predicates and therefore do not warrant
separate statute-of-limitations calculations.”). Based on such knowledge, the
magistrate recommended dismissal because Traylor failed to timely file his claim.
In the alternative, the magistrate concluded Traylor failed to state a claim upon
which relief could be granted because he did not demonstrate how the application
of the statutory amendment created a significant risk of increasing his
punishment. See Garner v. Jones, 529 U.S. 244, 255 (2000) (“W hen the rule does
not by its own terms show a significant risk, the respondent must demonstrate, by
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evidence drawn from the rule’s practical implementation by the agency charged
with exercising discretion, that its retroactive application will result in a longer
period of incarceration than under the earlier rule.”); see also California Dep’t of
Corr. v. M orales, 514 U.S. 499, 507 n.3 (1995) (“[T]he focus of the ex post facto
inquiry is not on whether a legislative change produces some ambiguous sort of
disadvantage, nor . . ., on whether an amendment affects a prisoner’s opportunity
to take advantage of provisions for early release, but on whether any such change
alters the definition of criminal conduct or increases the penalty by which a crime
is punishable.” (quotations and citations omitted)).
Traylor objected to the magistrate’s conclusions and recommendation
arguing the statute of limitations should be equitably tolled because prison law
library policies prevented him from discovering the case law apprising him of his
legal rights. He also raised a new argument on the merits claiming the Truth in
Sentencing Act changed the calculation of a life sentence, for the purposes of
parole, from 45 years to 60 years. Over Traylor’s objections, the district judge
adopted the magistrate’s report and recommendation in its entirety. Traylor’s
statute of limitations argument was rejected because a civil rights action accrues
when the facts are apparent, not upon discovery of the legal basis for suit. See
Fratus v. Deland, 49 F.3d 673, 675 (10th Cir. 1995). The district judge fully
concurred in the findings and conclusions of the magistrate and refused to
consider arguments not raised with the magistrate. United States v. Garfinkle,
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261 F.3d 1030, 1031 (10th Cir. 2001) (issues not raised until objections to
magistrate judge’s report are deemed waived).
The district court dismissed Traylor’s claim as frivolous under 28 U.S.C. §
1915A and imposed a strike pursuant to 28 U.S.C. § 1915(g) upon the exhaustion
or waiver of Traylor’s appeal rights. Traylor filed this appeal accompanied by a
request to proceed in form a pauperis (ifp).
Discussion
Traylor fails to present a cogent argument, resorting instead to conclusory
statements w ithout benefit of relevant legal citation. W e agree in all respects
with the well-reasoned report and recommendation of the magistrate judge
adopted by the district court. Traylor’s appeal is “without merit in that it lacks an
arguable basis in either law or fact.” Thom pson v. Gibson, 289 F.3d 1218, 1222
(10th Cir. 2002).
W e DENY his motion to proceed ifp and DISM ISS this appeal pursuant to
28 U.S.C. § 1915(e)(2)(B)(i). Traylor is responsible for the immediate payment
of the unpaid balance of the appellate filing fee.
The dismissal of Traylor’s complaint by the district court and the dismissal
of this appeal each count as a strike pursuant to 28 U.S.C. § 1915(g). Jennings v.
Natrona County Det. Ctr. M ed. Facility, 175 F.3d 775, 780 (10th Cir.1999)
(dismissal by district court as frivolous under § 1915(e)(2)(B) followed by
appellate dismissal on the same basis counts as two strikes). Should Traylor
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garner one more strike he will no longer be permitted to proceed ifp in any civil
action filed in a federal court unless he is in imminent danger of physical injury.
28 U.S.C. § 1915(g).
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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