FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAY 22, 2003 THOMAS K. KAHN CLERK [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 03-10026 Non-Argument Calendar

________________________ D.C. Docket N

o. 02-00329-CV-RW

S-1 ADRIAN BROWN, Plaintiff-Appel lant,

versus GEORGIA BOARD OF PARDONS & PAROLES, WALTER RA

Y, Chairma

n, Defendants-Appe llees.

__________________________ Appeal from t

he United States D

istrict Court for t

he Northern Distric

t of Georgia

_________________________ (May 22, 2003) Before ANDE

RSON, BLAC

K and HULL, Circuit Judges. PER CURIAM: Appellant Adrian Brown is a pro se state prisoner ser ving a life sentence

for murder since 1 983. Brown filed t his § 1983 action, cla

iming that the re

troactive2

application of a new

Georgia parole pol

icy violated the

Ex Post Facto Cla

use of the United States Constitution. The dist rict court dism

issed Brown’s § 19 83 compla int as unti mely. Aft er rev iew, we affir m. I. BACKGROUND On January 10, 1983, Brown was convicted of murder and sentenced to life imprisonment . When Brown co mmitted his cri me, the Georgi a Parole Boa rd’s (“Parole Board” or “Board”) rules required that the Board initiallyconsider a lifeterm inmate for parole after serving seven yea rs 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 decisio n every three years. In November 19 89, the Parole Boa rd first considere

d Brown for parole . The Board denied Brow

n parole, and sched

uled Brown’s next

parole hearing for September 1997 pursuant to a new Board policy requiring the Board to reconsider parole only ever

y eight year

s. In 1991, this Court he

ld that the Board’ s change in the parole reconsideration p olicy violated the Ex Pos t Facto Clause. Akins v. Snow , 922 F.2d 1558, 1565 (11th C

ir. 1991) (overrul

ing recognized in Swan v. Ray , 293 F.3d 1252, 1253 (11th Cir. 2002)). As a result of this decision, the Parole Board1 Onappeal, Brown states that after he filed a motion for reconsideration of the date of hi s parole hearing, the Board extended the date of the hearing to January 2009. 3 reconsidered Brown’s parole in 1992. Parole was denied and reconsideration was scheduled for Septe

mber 1995. Befor e the B oard r econs idere d Brow n for p arole in 19 95, th e Supr eme Court issued California Dep’t of Corr. v. Morales , 514 U.S. 499 (1995). Morales upheld a California

statute amendi

ng parole procedure s that decreased the frequency of parole reconsiderations. Shortly after Morales , the Georgia Pa role Board approved a new policy in June 1995, providing that persons under life sentences, who w

ere denied parole,

could have their re

considerations set- off for up to eight years.Furthermore , the policy wa s made retroa

ctive and applied to prisoners such as Br

own. The Board ag ain denied Brown parol e in 1995, a nd resched uled Brown ’s next reconsiderati

on for Septemb er 2000 pursuant to the new 1995 policy a llowing reconsideration se

t-off for up to eight

years. Brow

n was informe

d of the parole denial and reconside

ration date in a lett

er from the B oard on September 29, 1995. The Board reconsidered Brown for parole in April 2001, and denied Bro wn parole. The Boa

rd set Septemb er 2007 as the next par ole hearing for Br

own. 14

On February 4 , 2002, Brown file d this § 1983 action chall enging the April 2001 Parole Board decision which scheduled his next reconsideration for more than three yea

rs away. Br

own argued that the policy violated the Ex Post Facto Clause and sought to hav e the Parole Boar

d ordered to reconsi

der him immediate

ly for parole a

nd to apply herein

after the three-

year reconside

ration rule which was in effe

ct at the time o f his original convict ion. The district court gr anted the defendant s’ motion for summary judgment. According to the dist

rict court, Brow

n’s § 1983 action wa

s untimely be

cause it was filed mor

e than two year

s after the Parol

e Board changed its policy in 1995. II. DISCUSSION On appeal, Brow

n argues that his com

plaint was dism

issed improperl

y because the decisio

n to delay his par

ole reconsideratio

n until 2007 was either : (1) a continuing violation of

his constitutional righ

ts against Ex Post Fa

cto laws; or (2) a separate an

d distinct injury

from the origin

al decision in 1995 to m

ake the new Georgia Parole Board policy retroactive. A. Continuing Violation Brown’s first a

rgument is that t

he decision to delay

his parole hearing un

til 2007 is a continuing violat ion of his constitutional

rights against Ex Po st Facto2 We review de novo the district court ’s interpretatio n and application o

f the st atute o f limitations. United States v. Gilbert , 136 F.3d 1451, 1453 (11th Cir. 1998). 5 laws. The proble

m for Brown i s that we rejec ted recently th

is argument in Lovett v. Ray , 327 F.3d 1181 (11th Cir. 2003). 2 In Lovett , a Georgia state prisoner challenge

d the same Geo

rgia parole policy at issue in

this case. Lovett

, like Brown in this

case, filed his § 19 83 action more than two years after the Georgia Parole Board inform ed him of his new parole date. The Lovett

Court explained that

“the critica

l distinction in the continuing violation ana

lysis is whether

the plaintiff com

plains 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 tha

t the decision “n

ot to consider Lovett

for parole again unt

il 2006 was a one time

act with continued consequences, and the limitations per

iod is not extended.” Id. (internal alterations omitted). We are bound by

Circuit preceden

t and Lovett

is directly on poi

nt as to the first argumen

t. Consequently

, the decision to sche

dule Brown’s par

ole hearing outside the three-y

ear period in place

at the time of h

is conviction does not fa

ll under the continuing violation doctrine.3 For the purposes of this opinion, it makes no differe nce whether Br

own’s next parole rehearing is in 2007 or, as he alleges on appeal, in 2009. 6 B. Separate and Distinct Injury Brown also argues t

hat the decision to set

-off his parole re

consideration until 2007, 3 after the Georgi a Parol Board deni

ed him parole in

2001, constitutes a distinct and separat

e harm. The

refore, accor

ding to Brown, the st

atute of limitations begin

s to run from the

date he was inform

ed that his parole reconsideration hearing would not be until 2007. We disagree. What Brown ignor

es is the fact that t

he statute of lim

itations begins to run from the date “

the facts which w

ould support a cause of

action are appare

nt 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) (i

nternal quotation m

arks and citation omit

ted). For the purposes of this case, t he operative phrase

is “should be apparent.” It is undisputed in this case that th e Georgia Parole Board in formed Brown in 1995 that his parole r

econsideration woul

d not be until 2000. At t

his point,Brown was aware that his parole reconsideration was being held outside the threeyear maxi mum that w

as mandated by

the Georgia Parole Board policy that was in place at the tim

e he commi

tted his crime.

It also “should ha

ve been apparent” t

o7

Brown at this tim

e that future parol

e reconsiderations

would be held outside t

he three-year period. Each time Br

own’s parole re

consideration heari

ng is set, it does not a

mount to a distinct and s eparate injury. See, e.g. , Smith v. Grub bs , 2002 WL 1481267, at *2 (10th Cir. July

11, 2002) (unpublished) . Rather, Brow n’s injury,

to the extent it

ever ex isted, was when the Geor gia Paro le Board applie d its ne w polic y, eliminating the requirement of parole review ev

ery three y

ears for Brown, retroactiv ely. It is the d ecision i n 1995 th at forms a pot ential bas is for Brown ’s claim. It was also at this point that Brown could have discovered the factual predicate of his cl

aim. The successive denials of pa role do not involve sepa

rate factual predicat

es and therefore d

o not warrant separ

ate statute-of-li

mitations calculations. Bec

ause Brown did not fi

le his claim w

ithin two years

of the 1995 decisi on, his § 1983 action is unti mely. III. CONCLUSION For all the above re

asons, we affir

m the district court’s decision. AFFIRMED.