United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 19, 2003
Charles R. Fulbruge III
Clerk
No. 03-20329
Conference Calendar
JULIUS DANIEL JOSEPH,
Plaintiff-Appellant,
versus
GARY JOHNSON; JOHNNY B. HOLMES;
JAMES PATTON,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-4844
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Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Julius Daniel Joseph, Texas prisoner # 617774, appeals the
district court’s dismissal with prejudice of his 42 U.S.C. § 1983
complaint as time-barred and therefore frivolous, and for failure
to state a claim for relief under 28 U.S.C. § 1915(e)(2). The
district court also determined that Joseph’s complaint was barred
by Heck v. Humphrey, 512 U.S. 477 (1994).
*
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that this opinion should not be published and is not precedent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. 03-20329
-2-
The district court did not err in concluding that Joseph’s
claims are barred by Heck. Joseph has failed to show that his
sentence on a 1991 conviction 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. See Heck,
512 U.S. at 486-87.
Joseph has previously filed a 42 U.S.C. § 1983 complaint
which the district court dismissed with prejudice as time-barred
and as frivolous under 28 U.S.C. § 1915(e)(2). The district
court’s dismissal counts as one strike for purposes of 28 U.S.C.
§ 1915(g). Because Joseph’s claims in the instant complaint lack
legal merit, his appeal is dismissed as frivolous. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R. 42.2. The
district court’s dismissal of the present case and our dismissal
of this appeal count as two strikes against Joseph for purposes
of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
388 (5th Cir. 1996). Joseph has accrued three strikes,
therefore, he may not proceed in forma pauperis in any civil
action or appeal filed while he is incarcerated or detained in
any facility unless he is under imminent danger of serious
physical injury. See 28 U.S.C. § 1915(g).
APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED