                                                         [DO NOT PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            MAR 13, 2007
                             No. 06-15038                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                  D. C. Docket No. 06-00985-CV-TCB-1

ALBERT HEARD,

                                                           Plaintiff-Appellant,

                                  versus

GEORGIA STATE BOARD OF PARDONS AND PAROLES,
MR. MILTON E. (BUDDY) NIX,
and Members,
GARLAND R. HUNT,
Vice-Charman,
GARFIELD HAMMOND, JR.
MR. EUGENE P. WALKER,
MRS. L. GALE BUCKER,


                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                             (March 13, 2007)
Before ANDERSON, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

      Albert Heard, a Georgia state prisoner proceeding pro se, appeals the

dismissal, pursuant to 28 U.S.C. § 1915A, of his 42 U.S.C. § 1983 complaint for

failure to state a claim. He also appeals the district court’s denial of his motion for

reconsideration. For the following reasons, we affirm.

                                 I. BACKGROUND

      Although the record is not entirely clear, it appears that Heard is currently

serving concurrent twenty-year sentences for his 2000 and 2001 residential

burglary convictions. His latest possible release date—the date on which he would

be released if he served his entire sentence—is May 22, 2021. Heard filed a

§ 1983 action against members of the Georgia State Board of Pardons and Paroles

(the “Board”), in their official and individual capacities, seeking, inter alia,

compensatory damages, injunctive relief, and declaratory relief. In his complaint,

Heard alleged, in pertinent part, that the defendants violated the Constitution’s Due

Process and Ex Post Facto Clauses by retroactively applying a policy requiring him

to serve 90% of his sentence (the “90% policy”) before he could become eligible

for parole. After the Board denied Heard’s request to reevaluate his parole

eligibility date, Heard filed the instant § 1983 action.



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      After performing the required screening under the Prison Litigation Reform

Act, 28 U.S.C. § 1915A, the district court sua sponte dismissed the complaint for

failure to state a claim upon which relief could be granted. Heard filed a motion

for reconsideration of the district court’s dismissal, reiterating the arguments in his

complaint and also contending that the court had failed to consider his claim that

O.C.G.A. § 42-9-45(f) mandated that he be paroled after serving one-third of his

sentence with a record of good behavior. The court denied his motion. Heard now

appeals.

                                  II. DISCUSSION

                     A. Sua Sponte Dismissal Under § 1915A

      We review de novo the sua sponte dismissal of a complaint under § 1915A.

Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). Under § 1915A, the

district court is required to screen civil complaints filed by prisoners against

governmental officers or entities, and shall dismiss the complaint if it is frivolous,

fails to state a claim, or seeks monetary relief from a defendant who is immune

from such relief. 28 U.S.C. § 1915A(a), (b)(1), (b)(2). A complaint fails to state a

claim when “it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.” Flint v. ABB, Inc., 337

F.3d 1326, 1328-29 (11th Cir. 2003). In screening a complaint under § 1915A, the



                                           3
district court is required to review the action and identify cognizable claims. See

28 U.S.C. § 1915A(b). In doing so, the court must pierce the veil of the complaint

and examine the underlying factual allegations. See Neitzke v. Williams, 490 U.S.

319, 327, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989) (applying 28 U.S.C.

§ 1915(d)). All allegations in the complaint must be viewed as true. Brown v.

Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). “Pro se pleadings are held to a

less stringent standard than pleadings drafted by attorneys and will, therefore, be

liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th

Cir. 1998). Nonetheless, federal courts have discretion to dismiss pro se claims if

they lack an arguable basis either in fact or in law. Nietzke, 490 U.S. at 324-25,

109 S.Ct. at 1831-32.

                                1. Due Process Claim

      Establishment of a parole system does not automatically create a liberty

interest in parole; “[o]nly when a state maintains a parole system that creates a

legitimate expectation of parole does it [also] establish a liberty interest in parole

that is subject to the protections of the Due Process Clause.” Jones v. Ray, 279

F.3d 944, 946 (11th Cir. 2001). In Sultenfuss v. Snow, this court held that

Georgia’s parole system did not create such an expectation so that Georgia inmates

have no liberty interest in parole. Jones, 279 F.3d at 946 (citing Sultenfuss v.



                                            4
Snow, 35 F.3d 1494, 1502 (11th Cir. 1994) (en banc)). Moreover, it “is

well-settled that there is no federal constitutional right to parole.” Jones, 279 F.3d

at 946 (citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1,

7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979)). Where there is no liberty interest

in parole, “the procedures followed in making the parole determination are not

required to comport with standards of fundamental fairness.” O’Kelley v. Snow,

53 F.3d 319, 321 (11th Cir. 1995).

       Under O.C.G.A. § 42-9-45(b), an inmate serving a felony sentence “shall

only be eligible for consideration for parole after” having served nine months of or

one-third of his sentence, whichever is greater. O.C.G.A. § 42-9-45(b) (emphasis

added). Under O.C.G.A. § 42-9-45(f), “no inmate serving a sentence imposed for

any of the crimes listed in this subsection shall be granted release on parole until

and unless said inmate has served on good behavior” seven years or one-third of

his prison sentence, whichever occurs first. O.C.G.A. § 42-9-45(f). Residential

burglary is not one of the crimes listed in O.C.G.A. § 42-9-45(f).1

       On appeal, Heard challenges the dismissal of his due process claim on the



       1
         The enumerated offenses are: voluntary manslaughter, statutory rape, incest, cruelty to
children, arson in the first degree, homicide by vehicle while under the influence of alcohol or as
a habitual traffic violator, aggravated battery, aggravated assault, trafficking in drugs, and
violations of Chapter 14 of Title 16, the Georgia Racketeer Influenced and Corrupt
Organizations Act. O.C.G.A. § 42-9-45(f).

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grounds that: he was entitled to an evidentiary hearing in the district court before

the dismissal, the § 1915A frivolity review was not conducted by a magistrate

judge, and the district court’s decision was wrong on the merits.

      As an initial matter, Heard’s contention that he was entitled to an evidentiary

hearing before the district court dismissed his complaint is without merit. Nothing

in the text of § 1915A requires a district court to grant such a hearing before sua

sponte dismissing an inmate’s complaint for failure to state a claim, and this court

has never held that such a requirement exists.

      We likewise reject Heard’s contention that his due process rights were

violated because the § 1915A frivolity review was not conducted by a magistrate

judge. There is no authority in either § 1915A, the case law of the Supreme Court,

or the case law of this court supporting such a claim.

      We also reject Heard’s contention that the district court erred on the merits

in dismissing his due process claim. As discussed above, Georgia inmates have no

liberty interest in parole, and there is no federal constitutional right to parole.

Jones, 279 F.3d at 946. Moreover, the Board has “significant discretion” in its

application of, and departure from, the Parole Decision Guidelines. Sultenfuss, 35

F.3d at 1501. And to the extent Heard argues that O.C.G.A. § 42-9-45(f) created a

liberty interest in parole, he is incorrect as, by its own terms, O.C.G.A. § 42-9-



                                            6
45(f) does not apply to inmates incarcerated for residential burglary.

      Accordingly, even liberally construing Heard’s pro se complaint, we

conclude that the district court correctly dismissed Heard’s due process claim for

failure to state a claim upon which relief could be granted.

                               2. Ex Post Facto Claim

      The Ex Post Facto Clause prohibits states from enacting statutes which

“make more burdensome the punishment for a crime, after its commission.”

United States v. De La Mata, 266 F.3d 1275, 1286 (11th Cir. 2001) (emphasis

added). Retroactive changes to laws governing the parole of prisoners may, in

some instances, violate the Ex Post Facto Clause. Garner v. Jones, 529 U.S. 244,

250, 120 S.Ct. 1362, 1267, 146 L.Ed.2d 236 (2000). To prevail on an Ex Post

Facto Clause challenge concerning changes in parole procedures, a prisoner “must

show that as applied to his own sentence the law created a significant risk of

increasing his punishment.” Id. at 255, 120 S.Ct. at 1370.

      Heard bases his ex post facto claim on a letter he received from the Board in

March of 2006. The letter stated that Heard’s original tentative parole month

(“TPM”) had been extended to May of 2011 and that a performance review hearing

was to be held in November of 2010. The letter further stated that Heard’s

previous “parole success likelihood score” and “crime severity level” had remained



                                          7
unchanged. On appeal, Heard argues that O.C.G.A. § 42-9-45(f) mandates that he

be paroled after serving one-third of his sentence with a record of good behavior.

He contends that the Board’s 90% policy was retroactively applied to his parole

eligibility determination (as evidenced by resetting his TPM) so that requiring him

to serve more than one-third of his sentence before he is paroled violates the Ex

Post Facto Clause. We disagree.

      First, Heard’s contention that O.C.G.A. § 42-9-45(f) compels his actual

release on parole upon serving one-third of his sentence is erroneous. As stated

above, by its own terms, O.C.G.A. § 42-9-45(f) does not apply to Heard because he

is incarcerated for residential burglary. Moreover, O.C.G.A. § 42-9-45(f) does not

require the actual release of an inmate upon serving seven years or one-third of his

sentence on good behavior, rather, the statute provides that “no inmate”

incarcerated for certain enumerated offenses (which, again, do not include

residential burglary) shall be released on parole “until and unless” he has served

seven years or one-third of his sentence on good behavior. O.C.G.A. § 42-9-45(f).

      Second, to the extent he claims that O.C.G.A. § 42-9-45(b) mandates his

release on parole after having served one-third of his sentence, Heard is also

incorrect. The relevant language of that statute states that “an inmate serving a

felony sentence or felony sentences shall only be eligible for consideration for



                                          8
parole after the expiration of nine months of his or her sentence or one-third of the

time of the sentences, whichever is greater.” O.C.G.A. § 42-9-45(b) (emphasis

added). The plain reading of this language is that Georgia inmates serving a felony

sentence must serve a minimum of nine months or one-third of their sentence. The

statute does not require the Board to actually release, or to even consider releasing,

an inmate on parole at a particular time.

      Third, the 90% policy was never applied to Heard, retroactively or

otherwise. Heard’s TPM is May of 2011. Thus, he will become eligible for parole

consideration after serving approximately 50% of his 20-year sentence.

      Heard is also incorrect to the extent he contends that the Board’s most recent

parole policy was retroactively applied to him. In November of 2005, the Board

adopted a new rule that replaces the 90% policy and applies only to those inmates

convicted on or after January 1, 2006. The new rule provides that inmates serving

sentences pursuant to one or more enumerated offenses (including residential

burglary) shall be assigned a crime-severity level of VIII, and, depending on their

“parole success likelihood score,” those inmates are required to serve either 90%,

75%, or 65% of their prison sentences. Ga. Comp. R. & Regs. 475-3-.05(7).

Because Heard will become parole eligible after having served approximately 50%

of his sentence and his crime-severity level has remained unchanged, we conclude



                                            9
that the Board’s latest policy has not been applied to him.

      Accordingly, we conclude “beyond doubt” that Heard can prove no set of

facts establishing an Ex Post Facto Clause violation.

                       B. Denial of the Motion to Reconsider

      We review a district court’s denial of a motion for reconsideration for abuse

of discretion. Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113, 1121 (11th

Cir. 2004). Heard agues that the district court abused its discretion by failing to

put forth any legal analysis or otherwise address the merits of his claims in denying

his motion for reconsideration. We disagree. As the district court concluded,

Heard’s motion merely reiterated the allegations in his complaint. And because we

conclude that the record supports the dismissal of Heard’s complaint for failure to

state a claim, the district court did not abuse its discretion in denying the motion

for reconsideration.

                                III. CONCLUSION

      For the foregoing reasons, we AFFIRM.




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