James Swan, a Georgia life prisoner who was not receiving parole considerations on an annual basis, filed under F.R.Civ.P. Rule 20(a) to join the earlier 42 U.S.C. § 1983 injunction of Georgia lifer prisoner C.T. Akins that provides for Akins to have annual hearings. Akins had won such injunctive relief based upon an ex post facto argument. See: Akins v. Snow, 922 F.2d. 1558 (11th Cir. 1991) [PLN, Aug. 1991, p.7]. Seeking enforcement of his injunction in a second suit, Akins won a consensual permanent injunction in August, 2001.
When Swan moved to join this second suit, the Eleventh Circuit rejected his action on three grounds. First, the court ruled that Swan didn't have a right to join the second suit because he was not a party to the first suit. That is, because he never personally gained injunctive relief first, he could not bootstrap such relief by joining only the later enforcement action of Swan's injunction.
Second, the ex post facto relief granted in Akins was later overruled by the US Supreme Court in Garner v. Jones, 529 U.S. 244, 257 (2000). The Eleventh Circuit observed that Garner would now require Swan to show the significant risk of an ex post facto sentencing increase as it applied specifically to him. Joining Akins could not substitute for this necessary showing. Third, the relief granted Akins survives Garner only because Georgia consented to a permanent injunction for Akins' annual parole hearings.
The court suggested that Swan could file his own separate lawsuit if he believed the facts in his case would prove an Ex Post Facto Clause violation. See: Swan v. Ray, 293 F.3d 1252 (11th Cir. 2002).
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