IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60305
Conference Calendar
MILTON LEON SIMPSON, ET AL
Plaintiffs,
MILTON LEON SIMPSON; CHARLES TORNS, JR.;
LONNIE LONDON KENNEDY,
Plaintiffs-Appellants,
versus
KIRK FORDICE; MISSISSIPPI LEGISLATURE;
MISSISSIPPI JUDICIARY; MISSISSIPPI
EXECUTIVE; MISSISSIPPI DEPARTMENT OF
CORRECTIONS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:95-CV-398-B-A
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June 17, 1998
Before DAVIS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Mississippi prisoners Milton Leon Simpson, #A84045; Walter
Coleman, Jr., #37410; Charles Torns, Jr., #85825; and Lonnie
London Kennedy, #63279; appealed the dismissal of their civil
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 96-60305
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rights suit as frivolous. Coleman has since withdrawn from the
complaint. Because Torns and Kennedy failed to comply with the
district court’s order with respect to their in forma pauperis
applications, their appeals are DISMISSED for failure to
prosecute. See 5th Cir. R. 42.3.
Simpson contends that the Mississippi Habitual Offender
Statutes, under which he is presently incarcerated, are
unconstitutional. Claims that directly or indirectly challenge
the constitutionality of the state sentencing decision are not
cognizable under § 1983 unless the sentence “has been reversed on
direct appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such determination, or called
into question by a federal court’s issuance of a writ of habeas
corpus, 28 U.S.C. § 2254." Heck v. Humphrey, 512 U.S. 477, 486-
87 (1994); Serio v. Members of La. State Bd. of Pardons, 821 F.2d
1112, 1117 (5th Cir. 1987). Because Simpson is seeking a court
order that would reduce the length of his sentence, his sole
federal remedy is a petition for writ of habeas corpus. Preiser
v. Rodriguez, 411 U.S. 475, 500 (1973).
This appeal is without arguable merit and, thus, frivolous.
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because
the appeal is frivolous, it is DISMISSED. 5th Cir. R. 42.2.
Simpson’s motion for appointment of counsel is DENIED.
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
No. 96-60305
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We caution Simpson that any additional frivolous appeals
filed by him will invite the imposition of sanctions. To avoid
sanctions, Simpson is further cautioned to review any pending
appeals to ensure that the appeals do not raise arguments that
are frivolous.
APPEAL DISMISSED. MOTION DENIED. SANCTION WARNING ISSUED.