IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30488
USDC No. 94-CV-1766
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LYMAN THOMPSON,
Petitioner-Appellant,
versus
MIKE GILLIAM, Warden,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
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August 14, 1995
Before DUHÉ, EMILIO M. GARZA and STEWART, Circuit Judges.
BY THE COURT:
Lyman Thompson has filed a request for a certificate of
probable cause (CPC). IT IS ORDERED that his motion be GRANTED.
Thompson has failed to demonstrate that he has exhausted his
state remedies, see Carter v. Estelle, 677 F.2d 427, 443 (5th
Cir. 1982), cert. denied, 460 U.S. 1056 (1983), and has failed to
demonstrate that he should be excused from exhausting his claims.
See Deters v. Collins, 985 F.2d 789, 795 & n.16 (5th Cir. 1993).
Therefore, IT IS FURTHER ORDERED that the portion of the judgment
dismissing without prejudice his habeas claims for failure to
exhaust is AFFIRMED.
No. 95-30488
-2-
The Supreme Court has held that in order to recover damages
for harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, the plaintiff must prove that the
conviction or sentence was reversed on appeal, expunged by
executive order, declared invalid by a state tribunal authorized
to make such determinations, or called into question by a federal
court's issuance of a writ of habeas corpus. Heck v. Humphrey,
114 S. Ct. 2364, 2372 (1994). Prior to Heck, this court required
litigants to litigate § 1983 claims that were inextricably
intertwined with habeas claims in habeas proceedings before
pursuing § 1983 relief. Serio v. Members of Louisiana State Bd.
of Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987).
The district court did not address Thompson's denial-of-
access-to-the-courts claim, and it is unclear from the current
record whether Heck precludes suit at this time. Therefore, that
portion of the judgment is VACATED and the case REMANDED. On
remand the district court should consider the claim in light of
Heck.
IT IS FURTHER ORDERED that the motion for appointment of
counsel is DENIED. See Schwander v. Blackburn, 750 F.2d 494, 502
(5th Cir. 1985). All remaining motions are DENIED.