                                                                       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        This order and judgment is not binding precedent except under the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

                                          -5-
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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