United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 21, 2003
Charles R. Fulbruge III
Clerk
No. 03-20081
Conference Calendar
PERRY WAYNE FREEMAN,
Plaintiff-Appellant,
versus
GARY JOHNSON, Executive Director; FRANK HOKE; JOHN F. FANT,
Director of State Counsel for Defenders,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-1609
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Perry Wayne Freeman, Texas prisoner #752397, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint as
frivolous and for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B). He reasserts his argument that prison officials
denied him access to the courts in violation of his
constitutional rights by not providing him with certain
statutory authority.
*
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that this opinion should not be published and is not precedent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. 03-20081
-2-
Freeman fails to demonstrate a “relevant actual injury”
stemming from the defendants’ alleged unconstitutional conduct.
Lewis v. Casey, 518 U.S. 343, 351 (1996). The federal statutes
Freeman requested, 28 U.S.C. §§ 1495** and 2513, are simply not
relevant to the appeal of his state conviction and come into play
only after a defendant has succeeded in overturning his federal
conviction and is seeking damages for wrongful conviction. See
28 U.S.C. §§ 1495 and 2513. Therefore, the district court did
not err in dismissing Freeman’s action.
Freeman’s argument that he needed the requested statutory
authority in order to do preliminary research for his federal
habeas petition is raised for the first time on appeal, and this
court will not review it. See Leverette v. Louisville Ladder
Co., 183 F.3d 339, 342 (5th Cir. 1999). Furthermore, the
statutes would likewise not be relevant to a federal habeas
action, as they are relevant only after a defendant’s federal
conviction has been overturned. See 28 U.S.C. §§ 1495, 2513.
The district court’s dismissal of the complaint as frivolous
and for failure to state a claim counts as a “strike” for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 385-87 (5th Cir. 1996). Freeman is WARNED that if he
accumulates three strikes pursuant to 28 U.S.C. § 1915(g), he may
**
Although Freeman has identified 28 U.S.C. § 1491, which
relates to contract actions against the United States, as one of
the statutes he requested, it is presumed that he meant to refer
to 28 U.S.C. § 1495.
No. 03-20081
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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. Id.
Freeman’s motion for appointment of appellate counsel is
DENIED.
AFFIRMED; SANCTION WARNING ISSUED; MOTION DENIED.