[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 05-10404
U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
________________________ June 29, 2005
THOMAS K. KAHN
D. C. Docket No. 04-03336-CV-TWT-1 CLERK
DARRELL JOE BELL,
Plaintiff-Appellant,
versus
STATE OF GEORGIA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 29, 2005)
Before CARNES, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Darrell Joe Bell, a Georgia state prisoner proceeding pro se, filed two
motions, one entitled “motion for equitable relief,” and the other entitled “motion
for judgment of acquittal,” challenging his convictions and sentences for child
molestation, enticing a child, and being a peeping tom. In these motions, Bell
claimed, inter alia, that he received ineffective assistance of counsel and that he
was actually innocent of the charges to which he had pleaded guilty.
The district court conducted the required screening under the Prison
Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A, noting that the motions had
been docketed as a 42 U.S.C. § 1983 action, but that Bell sought relief that was
appropriate in a habeas petition under 28 U.S.C. § 2254. The court then concluded
that (1) if the motions were treated as § 1983 claims, they were barred by Heck v.
Humphrey1 because Bell had not shown that his state convictions had been
overturned, and (2) if the claims were treated as § 2254 claims, the district court
should not review the motions because Bell’s state habeas petition was pending in
the state supreme court.2 Finally, the district court found that, even if the motions
1
512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (holding that a plaintiff cannot
recover damages for an allegedly unconstitutional conviction if success on the claim would
invalidate a conviction unless the plaintiff can show that the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or called
into question by a federal court’s issuance of a writ of habeas corpus).
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According to the district court, Bell filed a state habeas petition, which was denied in 1999,
and the state supreme court denied a certificate of probable cause in 2000. Bell then filed a second
state habeas petition in 2003, which was denied as successive in 2004, and the request for a
certificate of probable cause remained pending in the state supreme court.
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were construed under § 2254, they were untimely.
We review frivolity dismissals under 28 U.S.C. § 1915A de novo. Harden v.
Pataki, 320 F.3d 1289, 1292 (11th Cir. 2003).
Section 1915A of the PLRA requires the district court to review civil actions
and to identify cognizable claims or dismiss the complaint or portions thereof that
are frivolous. 28 U.S.C. § 1915A(b). A claim is frivolous if it is based on an
indisputably meritless legal theory or, after piercing the veil of the complaint, the
court determines that the factual allegations are clearly baseless. Neitzke v.
Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989)
(applying 28 U.S.C. 1915(d)); see also Carroll v. Gross, 984 F.2d 392, 393 (11th
Cir. 1993).
Upon review of the record, we conclude that the district court properly
dismissed the motions as frivolous for the reasons stated in the district court’s
order dated December 30, 2004.
AFFIRMED.
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