[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ MAY 22, 2003
THOMAS K. KAHN
No. 03-10026 CLERK
Non-Argument Calendar
________________________
D.C. Docket No. 02-00329-CV-RWS-1
ADRIAN BROWN,
Plaintiff-Appellant,
versus
GEORGIA BOARD OF PARDONS & PAROLES,
WALTER RAY, Chairman,
Defendants-Appellees.
__________________________
Appeal from the United States District Court for the
Northern District of Georgia
_________________________
(May 22, 2003)
Before ANDERSON, BLACK and HULL, Circuit Judges.
PER CURIAM:
Appellant Adrian Brown is a pro se state prisoner serving a life sentence for
murder since 1983. Brown filed this § 1983 action, claiming that the retroactive
application of a new Georgia parole policy violated the Ex Post Facto Clause of
the United States Constitution. The district court dismissed Brown’s § 1983
complaint as untimely. After review, we affirm.
I. BACKGROUND
On January 10, 1983, Brown was convicted of murder and sentenced to life
imprisonment. When Brown committed his crime, the Georgia Parole Board’s
(“Parole Board” or “Board”) rules required that the Board initially consider a life-
term inmate for parole after serving seven years of his life sentence. If the Board
denied an inmate parole at this initial hearing, the rules required that the Board
thereafter reconsider its parole decision every three years.
In November 1989, the Parole Board first considered Brown for parole. The
Board denied Brown parole, and scheduled Brown’s next parole hearing for
September 1997 pursuant to a new Board policy requiring the Board to reconsider
parole only every eight years.
In 1991, this Court held that the Board’s change in the parole
reconsideration policy violated the Ex Post Facto Clause. Akins v. Snow, 922
F.2d 1558, 1565 (11th Cir. 1991) (overruling recognized in Swan v. Ray, 293 F.3d
1252, 1253 (11th Cir. 2002)). As a result of this decision, the Parole Board
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reconsidered Brown’s parole in 1992. Parole was denied and reconsideration was
scheduled for September 1995.
Before the Board reconsidered Brown for parole in 1995, the Supreme
Court issued California Dep’t of Corr. v. Morales, 514 U.S. 499 (1995). Morales
upheld a California statute amending parole procedures that decreased the
frequency of parole reconsiderations. Shortly after Morales, the Georgia Parole
Board approved a new policy in June 1995, providing that persons under life
sentences, who were denied parole, could have their reconsiderations set-off for up
to eight years. Furthermore, the policy was made retroactive and applied to
prisoners such as Brown.
The Board again denied Brown parole in 1995, and rescheduled Brown’s
next reconsideration for September 2000 pursuant to the new 1995 policy allowing
reconsideration set-off for up to eight years. Brown was informed of the parole
denial and reconsideration date in a letter from the Board on September 29, 1995.
The Board reconsidered Brown for parole in April 2001, and denied Brown
parole. The Board set September 2007 as the next parole hearing for Brown.1
1
On appeal, Brown states that after he filed a motion for reconsideration of the date of his
parole hearing, the Board extended the date of the hearing to January 2009.
3
On February 4, 2002, Brown filed this § 1983 action challenging the April
2001 Parole Board decision which scheduled his next reconsideration for more
than three years away. Brown argued that the policy violated the Ex Post Facto
Clause and sought to have the Parole Board ordered to reconsider him
immediately for parole and to apply hereinafter the three-year reconsideration rule
which was in effect at the time of his original conviction.
The district court granted the defendants’ motion for summary judgment.
According to the district court, Brown’s § 1983 action was untimely because it
was filed more than two years after the Parole Board changed its policy in 1995.
II. DISCUSSION
On appeal, Brown argues that his complaint was dismissed improperly
because the decision to delay his parole reconsideration until 2007 was either: (1)
a continuing violation of his constitutional rights against Ex Post Facto laws; or
(2) a separate and distinct injury from the original decision in 1995 to make the
new Georgia Parole Board policy retroactive.
A. Continuing Violation
Brown’s first argument is that the decision to delay his parole hearing until
2007 is a continuing violation of his constitutional rights against Ex Post Facto
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laws. The problem for Brown is that we rejected recently this argument in Lovett
v. Ray, 327 F.3d 1181 (11th Cir. 2003).2
In Lovett, a Georgia state prisoner challenged the same Georgia parole
policy at issue in this case. Lovett, like Brown in this case, filed his § 1983 action
more than two years after the Georgia Parole Board informed him of his new
parole date. The Lovett Court explained that “the critical distinction in the
continuing violation analysis is whether the plaintiff complains of the present
consequence of a one time violation, which does not extend the limitations period,
or the continuation of that violation into the present, which does.” Id. at 1183
(citation, internal quotation marks, and internal alterations omitted). This Court
further stated that the decision “not to consider Lovett for parole again until 2006
was a one time act with continued consequences, and the limitations period is not
extended.” Id. (internal alterations omitted).
We are bound by Circuit precedent and Lovett is directly on point as to the
first argument. Consequently, the decision to schedule Brown’s parole hearing
outside the three-year period in place at the time of his conviction does not fall
under the continuing violation doctrine.
2
We review de novo the district court’s interpretation and application of the statute of
limitations. United States v. Gilbert, 136 F.3d 1451, 1453 (11th Cir. 1998).
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B. Separate and Distinct Injury
Brown also argues that the decision to set-off his parole reconsideration
until 2007,3 after the Georgia Parol Board denied him parole in 2001, constitutes a
distinct and separate harm. Therefore, according to Brown, the statute of
limitations begins to run from the date he was informed that his parole
reconsideration hearing would not be until 2007. We disagree.
What Brown ignores is the fact that the statute of limitations begins to run
from the date “the facts which would support a cause of action are apparent or
should be apparent to a person with a reasonably prudent regard for his rights.”
Rozar v. Mullis, 85 F.3d 556, 561-62 (11th Cir. 1996) (internal quotation marks
and citation omitted). For the purposes of this case, the operative phrase is
“should be apparent.”
It is undisputed in this case that the Georgia Parole Board informed Brown
in 1995 that his parole reconsideration would not be until 2000. At this point,
Brown was aware that his parole reconsideration was being held outside the three-
year maximum that was mandated by the Georgia Parole Board policy that was in
place at the time he committed his crime. It also “should have been apparent” to
3
For the purposes of this opinion, it makes no difference whether Brown’s next parole
rehearing is in 2007 or, as he alleges on appeal, in 2009.
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Brown at this time that future parole reconsiderations would be held outside the
three-year period.
Each time Brown’s parole reconsideration hearing is set, it does not amount
to a distinct and separate injury. See, e.g., Smith v. Grubbs, 2002 WL 1481267, at
*2 (10th Cir. July 11, 2002) (unpublished). Rather, Brown’s injury, to the extent it
ever existed, was when the Georgia Parole Board applied its new policy,
eliminating the requirement of parole review every three years for Brown,
retroactively. It is the decision in 1995 that forms a potential basis for Brown’s
claim. It was also at this point that Brown could have discovered the factual
predicate of his claim. The successive denials of parole do not involve separate
factual predicates and therefore do not warrant separate statute-of-limitations
calculations. Because Brown did not file his claim within two years of the 1995
decision, his § 1983 action is untimely.
III. CONCLUSION
For all the above reasons, we affirm the district court’s decision.
AFFIRMED.
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