[DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT           FILED
                           ________________________ U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                   No. 04-15512                   MAY 9, 2005
                               Non-Argument Calendar            THOMAS K. KAHN
                             ________________________               CLERK


                       D.C. Docket No. 04-02352-CV-BBM-1

DARIUS CUMMINGS,

                                                     Plaintiff-Appellant,

       versus

THURBERT BAKER, being sued
in their individual capacities of duties,
JAMES DONALD, being sued in
their individual capacities of duties, et al.,
                                                     Defendants-Appellees.

                           __________________________

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

                                     (May 9, 2005)

Before BIRCH, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
      Darius Cummings, a state prisoner proceeding pro se, appeals the district

court’s order dismissing as frivolous his 42 U.S.C. § 1983 claim, alleging that the

defendants, Thurbert Baker, James Donald, Tommy Wilcox, and Charles Weston,

(hereinafter “the defendants”), retroactively increased his punishment, in violation

of the ex post facto clause, by not reconsidering him for parole after a federal court

determined that the Georgia law requiring inmates convicted of certain crimes

serve 90% of their prison term before they were eligible for parole was

unconstitutional. Because the crime for which Cummings was convicted,

aggravated sodomy, was not a crime subject to the 90% service requirement, and

Cummings does not have standing to bring a § 1983 claim on behalf of “similarly

situated individuals,” the district court did not err when it dismissed his claim as

frivolous. Accordingly, we AFFIRM.

                                I. BACKGROUND

      Cummings filed his sworn, pro se 42 U.S.C. § 1983 complaint against the

defendants, wherein he argued, in relevant part, that the defendants retroactively

increased his punishment because they required him to serve more than the 1/3 of

his sentence that he was already required to serve before he was eligible for

parole, in violation of the ex post facto clause. In his complaint, Cummings stated

that he pled guilty to aggravated sodomy on 8 July 1992, and was sentenced to 15

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years’ imprisonment. He also asserted that he was seeking an injunction to order

the trial court to address a motion for resentencing.

      The district court conducted a frivolity review, pursuant to 28 U.S.C. §

1915A, wherein it stated that Cummings’s argument, which the court construed as

invoking the federal Sentencing Guidelines, was misguided because the federal

Sentencing Guidelines only applied to defendants convicted and sentenced in the

federal court, and did not dictate when a defendant should be paroled. R1-3 at 4-

5. The district court concluded that, to the extent that Cummings’s complaint

concerned a claim regarding the duration of his confinement or a constitutional

defect in his conviction or sentence, Cummings needed to bring his claim in a

habeas corpus action. See 

The court further noted that it could not

construe his § 1983 claim as a § 2254 habeas petition because venue was

improper.1 Without explicitly addressing Cummings’s ex post facto argument, the

court dismissed Cummings’s complaint as frivolous. 

R1-4.

      Cummings subsequently filed a supplemental application for certificate of

appealability and motion for attorneys fees, wherein he maintained that he was

originally only required to serve 1/3 of his prison term before he was eligible for

parole. R1-5 at 1. However, Cummings claimed that after the Georgia legislature


      1
          We note that Cummings does not contest that ruling on appeal.

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passed a law stating that persons convicted of certain crimes were required to

serve 90% of their sentences before they were eligible for parole, and made that

law retroactive to crimes committed before 1998 when the law was enacted, the

federal district court determined that the resolution’s retroactive application was

unconstitutional. He contended that, because the Parole Board continued to

postpone the date of his parole eligibility hearing, it improperly increased his

punishment, in violation of the ex post facto clause.

      The district court denied Cummings’s motion for a certificate of

appealability because he was not required to file one, and construed the remainder

of his application/motion as a notice of appeal. R1-11 at 2.

      In his brief on appeal, Cummings included the Georgia Board of Pardons

and Paroles’s December 1997 resolution that stated:

      any offender who is convicted on or after January 1, 1998, of one or
      more of the below listed violent offenses or of a burglary of a
      residence will be required to serve a minimum of 90% of the court
      imposed term of incarceration in prison. This policy change will not
      affect the eligibility of offenders convicted under the “Two-Strikes”
      and the “Seven Deadly Sins” legislation now required to serve 100%
      of their sentences in prison. These offenses are: murder, rape,
      aggravated sodomy, armed robbery, kidnaping, aggravated child
      molestation, and aggravated sexual battery. . . .

Appellant’s Br. at Ex. A. Cummings also provided the Board’s Resolution

Amendment, wherein it stated that a federal court ruled that the policy was

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unconstitutional when applied to an offender who committed a crime prior to the

effective date of the policy, 1998. 

B. The Amendment further stated

that those offenders previously considered for parole under the 90% policy who

committed their offenses before 1 January 1998, shall be reconsidered for parole

under parole decision guidelines that do not include the 90% policy. 

       On appeal, Cummings argues that the district court erred in dismissing his

complaint as frivolous because the defendants violated his constitutional rights

when they failed to reconsider the date he was eligible for parole, after they

recognized that the Georgia law that stated that defendants had to serve 90% of

their prison terms before they were eligible for parole was unconstitutional as

applied to defendants whose offenses were committed before 1 January 1998. He

maintains that this violates the ex post facto clause. Cummings further contends

that there are other similarly situated defendants who face the same violation. The

defendants did not respond.2

       We have never determined what the standard of review is for a frivolity

dismissal under 28 U.S.C. § 1915A. We have, however, stated that we review de


       2
          Although Cummings’s certificate of service in his brief does not indicate that he served his
brief on the defendants, the administrative papers show that the clerk’s office provided the Attorney
General’s office with Cummings’s brief.

                                                  5
novo a dismissal under § 1915A for failure to state a claim. Leal v. Ga. Dep’t of

Corr., 

, 1279 (11th Cir. 2001) (per curiam). Further, the circuits are

split on whether the correct standard of review for a frivolity dismissal under §

1915A is de novo or abuse of discretion. Compare Shakur v. Selsky, 

, 112 (2d Cir. 2004) (de novo), with Martin v. Scott, 

, 580 (5th

Cir. 1998) (per curiam) (abuse of discretion). As demonstrated below, however,

under either standard, Cummings’s claim fails.

      Section 1915A of the United States Code provides that any appeal shall be

dismissed at any time if it is frivolous or malicious, fails to state a claim, or seeks

monetary relief from a defendant immune from such relief. 28 U.S.C. §1915A(b).

A claim is frivolous if it is without arguable merit either in law or fact. Bilal v.

Driver, 

, 1349 (11th Cir. 2001). We liberally construe the

arguments of a pro se appellant. See Tannenbaum v. United States, 

, 1263 (11th Cir. 1998) (per curiam).

      We have observed that the ex post facto clause prohibits a state from

enacting statutes which “make more burdensome the punishment for a crime, after

its commission.” United States v. Abraham, 

, 1037 (11th Cir.

2004). In order to prevail, the defendant must demonstrate that (1) the law was




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retrospective, in that it applied to events occurring before its enactment; and (2) he

was disadvantaged by it. 

initial matter, the only relief that Cummings sought in his complaint

was an injunction to force the trial court to consider a motion for resentencing,

which must be brought in a habeas corpus proceeding, and not in a § 1983 action.

See Preiser v. Rodriguez, 

, 486, 

, 1834, 

,

448 (1973). Therefore, the district court properly dismissed Cummings’s § 1983

claim.

         Moreover, Cummings’s claim also fails on the merits because the

documents he provided in his brief demonstrate that his claim is frivolous. See

Echaide v. Confederation of Canada Life Ins., 

, 1381 (5th Cir. 1972)

(finding against a litigant’s argument because of concessions in the briefs). The

Board’s resolution included in Cummings’s brief states that the new 90% rule did

not apply to offenders who were convicted under the “Seven Deadly Sins”

legislation because those offenders were required to serve 100% of their

sentences. One of the “Seven Deadly Sins” listed in the resolution is aggravated

sodomy. Because we may affirm the district court’s decision for reasons other

than those noted by the district court, see Turlington v. Atlanta Gas Light Co., 135




                                           

, 1433 n.9 (11th Cir. 1998), the documents submitted by Cummings in

his brief provide an additional ground upon which to affirm the dismissal.

      In addition, the sentencing statute for aggravated sodomy, which was

effective in 1994, provides that a defendant convicted of aggravated sodomy, in

which his sentence is less than life imprisonment, is required to serve his sentence

in its entirety, and the defendant is not entitled to parole. O.C.G.A. § 17-10-6.1(a),

(c)(3). Although this statute was enacted after Cummings was convicted, thus

posing ex post facto problems, Cummings does not bring on appeal an ex post

facto claim under this statute; therefore, the issue is waived. See Rowe v.

Schreiber, 

, 1382 n.1 (11th Cir. 1998) (holding that issues not

argued on appeal are deemed waived). Because Cummings admitted in his

complaint that he was convicted of aggravated sodomy and the statute governing

aggravated sodomy provides that he must serve his entire sentence without parole,

the 90% rule did not apply to Cummings and the district court did not err in

concluding that his complaint was frivolous.

      Additionally, to the extent that Cummings argues that there are other,

similarly situated defendants to which this rule applies, he does not have standing

to bring a claim for those defendants. We have held that in order to bring a claim

on behalf of other similarly situated persons, the named plaintiff must have

                                          8
standing to bring the claim. City of Hialeah, Fla. v. Rojas, 

, 1101

(11th Cir. 2002). In order to have standing, a plaintiff has to have suffered an

actual or threatened injury. Fla. Right to Life, Inc. v. Lamar, 

, 1322

(11th Cir. 2001). Because Cummings did not suffer an actual or threatened injury,

he does not have standing to bring the claim. Accordingly, we AFFIRM.




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