[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 06-13829 ELEVENTH CIRCUIT
MAY 07, 2007
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 06-01089-CV-TWT-1
RANDALL GERALD EVANS,
Plaintiff-Appellant,
versus
MILTON BUDDY NIX,
Chairman,
JOAN MURRAY,
Chief Parole Officer,
STATE BOARD PARDONS PAROLES,
DAVID CLIPPARD,
PAROLE OFFICER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
---------------------------------------
(May 7, 2007)
Before EDMONDSON, Chief Judge, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Randall Gerald Evans, a Georgia state prisoner proceeding pro se, appeals
the district court’s sua sponte dismissal of his
42 U.S.C. § 1983 complaint for
failure to state a claim, under 28 U.S.C. § 1915A. Evans brought his case against
Milton Nix, Chairman of the Georgia Board of Pardons and Paroles (the “Board”),
Joan Murray, Chief Parole Officer, the Board, and David Clippard, his parole
officer (collectively, the “Defendants”). No reversible error has been shown; we
affirm.
We review de novo a district court’s sua sponte dismissal of a suit for
failure to state a claim for relief under section 1915A. Harden v. Pataki,
320 F.3d
1289, 1292 (11th Cir. 2003). A plaintiff fails to state a claim when it is beyond
doubt that he can prove no set of facts supporting his claim that would entitle him
to relief. Brower v. County of Inyo,
109 S.Ct. 1378, 1382 (1989). We view all
fact allegations in the complaint as true. Brown v. Johnson,
387 F.3d 1344, 1347
(11th Cir. 2004). In addition, we liberally construe pro se pleadings.1
Id. at 1350.
To state a claim for relief based on
42 U.S.C. § 1983, “[plaintiffs] must establish
that they were deprived of a right secured by the Constitution or laws of the
1
Like the district court, we liberally construe Evans’s complaint as challenging how his parole
was revoked. To the extent that Evans seeks release from custody through his section 1983
complaint, his claims are barred. See Wilkinson v. Dotson,
125 S.Ct. 1242, 1247 (2005).
2
United States, and that the alleged deprivation was committed under color of state
law.” American Mfrs. Mut. Ins. Co. v. Sullivan,
119 S.Ct. 977, 985 (1999).
On appeal, Evans argues that he was denied due process when (1) he did not
receive a preliminary parole hearing; (2) he was not permitted to review
documents or confront witnesses at his final parole revocation hearing; (3) he was
not provided with notice of the alleged parole violations addressed at his
revocation hearing; and (4) false statements were made at his hearing. Each of
these claims lacks merit.2 The Board was not required to provide Evans with a
preliminary hearing because Evans’s parole was revoked for reasons including a
subsequent criminal conviction. See United States v. Cornog,
945 F.2d 1504,
1512 (11th Cir. 1991) (a preliminary hearing is not required when revocation
results from a subsequent criminal conviction because the conviction provides
cause to believe the parolee violated the terms of his parole).
2
In addition, Evans argues that his revocation hearing was not held “within 60 calendar days”
pursuant to Board Policy Statement 1.106.1, which Evans attached to his brief on appeal. Because
Evans did not raise this argument to the district court, we decline to address it. See Four Seasons
Hotels & Resorts, B.V. v. Consorcio Barr, S.A.,
377 F.3d 1164, 1168-69 (11th Cir. 2004). Evans
also asserts that confiscation of his vehicle, keys, and driver’s license by his parole officer -- which
occurred in 2001 -- “would show the conduct of parole officials.” To the extent that Evans’s
statement raises a constitutional claim, his claim is barred by Georgia’s two-year statute of
limitations applicable to section 1983 cases. See Williams v. City of Atlanta,
794 F.2d 624, 626
(11th Cir. 1986). We also note that Evans has not reasserted that Defendants violated his right to
be free from cruel and unusual punishment; therefore, this argument is abandoned. See Lambrix v.
Singletary,
72 F.3d 1500, 1506 n.11 (11th Cir. 1996).
3
And although Evans signed a “Waiver of Final Hearing,” he received a final
revocation hearing. Evans received notice of his alleged parole violations in his
waiver form (and again at his hearing); was informed by his parole officer of the
evidence against him; presented witnesses at his hearing; and had the opportunity
to challenge the testimony of the only witness against him -- his parole officer --
through discussion of his alleged parole violations with the hearing officer.3
In addition, we conclude that Evans is unentitled to relief based on his
assertion that false statements were made during his hearing. Evans does not
elaborate on this claim; but, even if we assume that Evans raises the argument
presented to the district court -- that his parole officer falsely testified about
Evans’s past criminal charges -- we conclude, after a careful review of the record,
3
We agree with the district court that Evans’s argument about involuntarily signing the hearing
waiver form is mooted by Evans receiving a revocation hearing that satisfied these minimum
requirements of due process:
(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of
evidence against him; (c) opportunity to be heard in person and to present witnesses
and documentary evidence; (d) the right to confront and cross-examine adverse
witnesses (unless the hearing officer specifically finds good cause for not allowing
confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole
board, members of which need not be judicial officers or lawyers; and (f) a written
statement by the factfinders as to the evidence relied on and reasons for revoking
parole.
Morrissey v. Brewer,
92 S.Ct. 2593, 2604 (1972). And to the extent that Evans contends that his
hearing was not the reconsideration hearing discussed in his waiver, this argument is without merit
because the Board considered the same seven violations at the hearing as were listed in Evans’s
waiver.
4
that this claim is untenable.4 And to the extent that Evans asserts that the
provision of
Ga. Code Ann. § 42-9-45(b) that applies to inmates serving
misdemeanor sentences should have affected his parole eligibility, this provision
did not apply to Evans because his underlying conviction was for burglary: a
felony. Evans has failed to state a due process claim.
Evans also argues that the district court erred in dismissing his right to
counsel claim. Evans acknowledges that counsel was unnecessary at his hearing
because he expected to be sent to an alcohol treatment center; but he asserts that
this act has not occurred.
We agree with the district court that the assistance of counsel was not
required in this case. Whether a lawyer should be provided to an indigent
defendant at a parole hearing depends on the facts and circumstances of the
particular case. Gagnon v. Scarpelli,
93 S.Ct. 1756, 1763-64 (1973). Although
“the presence and participation of counsel will probably be both undesirable and
constitutionally unnecessary in most revocation hearings,” counsel should be
provided in these circumstances:
4
For example, Evans’s parole officer testified that Evans was arrested for battery but that the
charge had been dead docketed; Evans admitted to being arrested on that charge at his habeas
hearing. The parole officer also testified that Evans was convicted of driving under the influence
(“DUI”) and “false report of a crime” but that related charges were nolle prossed. Evans admitted
during his revocation hearing that his DUI conviction was on appeal.
5
where, after being informed of his right to request counsel, the
probationer or parolee makes such a request, based on a timely and
colorable claim (i) that he has not committed the alleged violation of
the conditions upon which he is at liberty; or (ii) that, even if the
violation is a matter of public record or is uncontested, there are
substantial reasons which justified or mitigated the violation and
make revocation inappropriate, and that the reasons are complex or
otherwise difficult to develop or present.
Id. Here, Evans has not asserted that the Board failed to inform him of his right to
request counsel or that the Board failed to provide him with a lawyer after he
requested representation. Because Evans did not request a lawyer based on a
colorable claim that he did not commit his parole violations or that substantial and
complex reasons mitigated the violations, he did not state a right to counsel claim.
We next address Evans’s claim that he was denied access to courts when the
State did not compel his parole officer to testify about Evans’s final hearing
waiver at his habeas and mandamus proceedings, where he sought relief from
parole revocation. To the extent that Evans argues that his parole officer’s failure
to testify about the waiver prevented Evans from raising certain claims in state
court, this claim is meritless because the record shows that Evans’s waiver was
presented to the state habeas court. In addition, the habeas court referenced the
revocation hearing testimony given by Evans’s parole officer about the waiver.
The district court did not err in concluding that Evans failed to bring an access-to-
6
courts claim. See Lewis v. Casey,
116 S.Ct. 2174, 2179-82 (1996) (an inmate
alleging an access-to-courts violation must show actual injury).
We turn to Evans’s assertion that the Board’s retroactive application of
Georgia’s recidivist statute,
Ga. Code Ann. § 17-10-7(c), presents ex post facto
and due process violations. This argument is squarely foreclosed by our decision
in Metheny v. Hammonds,
216 F.3d 1307 (11th Cir. 2000), which addressed the
precise claims that Evans raises here.5
We affirm the district court’s dismissal of Evans’s complaint for failure to
state a claim.
AFFIRMED.
5
We also reject Evans’s arguments that the district court erred in failing to (1) consider all of
Evans’s exhibits; (2) make factual findings or offer conclusions of law on the alleged illegality of
an Assistant State Attorney General submitting proposed orders in state court on Evans’s case; and
(3) make findings on Evans’s mental status during his revocation proceedings. In making the last
argument, Evans references a separate part of his appellate brief that discusses the allegation that his
hearing waiver was involuntary. The exhibits cited by Evans did not materially aid the district court
in its review of whether Evans’s complaint stated a claim; and Evans did not allege facts showing
that Defendants were involved with the alleged acts of an Assistant State Attorney General. In
addition, the district court -- which determined that the validity of Evans’s hearing waiver was moot
because Evans received a final hearing that afforded him the rights guaranteed by the Constitution --
essentially decided that Evans’s mental status on this issue was immaterial.
7
