United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS June 22, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30832
Conference Calendar
ELSTON ROBERTSON,
Plaintiff-Appellant,
versus
FRANK BRINDISI,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 01-CV-1819-L
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Elston Robertson, Louisiana prisoner # 104013, appeals
the 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).
The district court held that Robertson’s § 1983 claim was barred
by both prosecutorial immunity and Heck v. Humphrey, 512 U.S. 477
(1994). Robertson has failed to brief the district court’s Heck
determination, and, therefore, that issue is waived and
*
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this opinion should not be published and is not precedent except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. 03-30832
-2-
unreviewable. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993). He consequently cannot show the district
court’s resolution of his claims to be erroneous.
Robertson’s appeal therefore lacks arguable merit and is
dismissed as frivolous. See 5TH CIR. R. 42.2; Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983). Robertson is warned that
the dismissal of this appeal as frivolous counts as a strike
for purposes of 28 U.S.C. § 1915(g), in addition to the strike
for the district court’s dismissal. See Patton v. Jefferson
Corr. Ctr., 136 F.3d 458, 463-64 (5th Cir. 1998). We warn
Robertson that once he accumulates three strikes, 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).
The district court construed Robertson’s challenge to his
confinement as a request for 28 U.S.C. § 2254 relief, and his
notice of appeal was construed by this court as an appellate
request for a certificate of appealability (COA) to appeal the
dismissal of his habeas claims for failure to exhaust state court
remedies. See Robertson v. Brindisi, No. 03-30832 (5th Cir.
Mar. 10, 2004) (unpublished). Robertson, however, has not shown
“that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable
No. 03-30832
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whether the district court was correct in its procedural ruling.”
See Slack v. McDaniel, 529 U.S. 473, 484 (2000). His COA request
is therefore DENIED.
APPEAL DISMISSED; STRIKE WARNING ISSUED; COA DENIED.