Case: 15-20065 Document: 00513411503 Page: 1 Date Filed: 03/08/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-20065 FILED
March 8, 2016
Lyle W. Cayce
Clerk
WILLIAM DAVID GOLDEN,
Plaintiff–Appellant,
versus
JUDY FOX, Official Court Reporter,
176th Judicial District Court of Harris County, Texas,
Defendant–Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:14-CV-1942
Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *
William Golden, Texas prisoner # 673185, moves to proceed in forma
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-20065
pauperis (“IFP”) on appeal of the dismissal of his 42 U.S.C. § 1983 complaint.
Golden primarily alleges that the court reporter in his criminal trial altered
the transcript by intentionally omitting certain material exculpatory state-
ments made by the assistant district attorney in closing argument.
The district court dismissed Golden’s claims under 28 U.S.C. § 1915(e)-
(2)(B), reasoning that they were barred by Heck v. Humphrey, 512 U.S. 477,
486-87 (1994), because the claims challenged or implied the validity of the con-
viction. The court also held that Golden’s claims against certain judges were
barred by absolute judicial immunity. See Stump v. Sparkman, 435 U.S. 349,
356–58 (1978). For the same reasons, the court denied Golden’s motion to
appeal IFP and certified that the appeal was not taken in good faith pursuant
to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure 24(a)(3). By
moving for leave to proceed IFP, Golden is challenging the certification. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Golden asserts that the district court erred by failing to give written
reasons beyond those in the magistrate judge’s report and recommendation,
which the court adopted. That assertion is unavailing, because the certifica-
tion expressly incorporated by reference the reasoning of the report and recom-
mendation. See Baugh, 117 F.3d at 202 & n.21.
If we construe his brief liberally, we glean that Golden contends that his
§ 1983 claims are proper under Skinner v. Switzer, 562 U.S. 521 (2011). There,
the Court held that a judgment in favor of the plaintiff in his § 1983 suit for an
order requiring DNA testing “would not ‘necessarily imply’ the invalidity of his
conviction” because the results might prove exculpatory, inconclusive, or might
further incriminate him. Id. at 533–34. But in citing Skinner, Golden does not
then say that the relief he seeks in his § 1983 action would not imply the
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No. 15-20065
invalidity of the conviction. Indeed, Golden’s complaint even states that his
§ 1983 suit seeks, among other things, to recover the audio tape of the trial “as
evidence to vacate the wrongful conviction and sentence.” Moreover, because
Golden seeks to uncover exculpatory statements allegedly made by the assis-
tant district attorney, the claims are comparable to those relying on Brady v.
Maryland, 373 U.S. 83 (1963). Skinner, 562 U.S. at 536, held that Brady
claims “ranked within the traditional core of habeas corpus and outside the
province of § 1983,” so Golden’s reliance on Skinner is misplaced.
Golden’s remaining assertions do not present any challenge to the
grounds of the certification. Although pro se briefs are liberally construed,
even pro se litigants must brief arguments to preserve them. Yohey v. Collins,
985 F.2d 222, 225 (5th Cir. 1993). Golden has not shown that the certification
was incorrect, so the motion for leave to proceed IFP is DENIED. See Howard
v. King, 707 F.2d 215, 219–20 (5th Cir. 1983). The appeal is without arguable
merit and is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24;
Howard, 707 F.2d at 219–20; 5TH CIR. R. 42.2.
We caution Golden that dismissal of his § 1983 suit by the district court
pursuant to § 1915(e) and our dismissal of this appeal as frivolous both count
as strikes under § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385–87
(5th Cir. 1996). Golden is also cautioned that if he accumulates three strikes
under § 1915(g), he may not proceed IFP in any civil action or appeal filed while
he is incarcerated or detained in any facility unless he is under imminent dan-
ger of serious physical injury. See § 1915(g).
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