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UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 94-60289
Summary Calendar
_____________________________________
HOSEY B. JOHNSON,
Plaintiff-Appellant,
VERSUS
CITY OF GULFPORT,
Defendant-Appellee.
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_____________________________________
No. 94-60308
Summary Calendar
_____________________________________
HOSEY B. JOHNSON,
Plaintiff-Appellant,
VERSUS
KIRK FORDICE, in his official capacity,
and THE STATE OF MISSISSIPPI,
Defendants-Appellees.
______________________________________________________
Appeals from the United States District Court
for the Southern District of Mississippi
(CA-93-614 & 3:94-CV-21WS)
______________________________________________________
(August 10, 1994)
Before DAVIS, JONES and DUHÉ, Circuit Judges.

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1 Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
2
PER CURIAM:1
In these two appeals, which we order consolidated, Johnson
challenges the dismissal of two § 1983 actions which are virtually
identical. We affirm.
I.
Hosey B. Johnson is currently an inmate at the South
Mississippi Correctional Institute serving a life sentence for
armed robbery. He filed two civil rights actions pro se and in
forma pauperis (IFP), alleging that he should not have been
convicted of armed robbery and sentenced to life imprisonment
because the state failed to produce a handgun at trial to
corroborate the victim's testimony. Johnson contends that his
conviction should have been for simple robbery only, which carries
a maximum sentence of fifteen years. He also contends that
Mississippi's armed robbery statute is unconstitutional because it
allows for a conviction without requiring the state to produce the
gun at trial.
The district court dismissed Johnson's complaint in 94-60289
as frivolous under § 1915(d), holding that Johnson's claim
constituted a challenge to the fact or length of his confinement
and, therefore, that he was required to exhaust his state and
federal habeas corpus remedies before bringing a § 1983 action.

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2 Johnson filed 94-60289 on December 27, 1993. The
second action, 94-60308, was filed on January 13, 1994.
3
The court also concluded that because Johnson did not establish the
deprivation of any federal constitutional right, he did not present
a cognizable claim under either § 1983 or § 2254. The court then
dismissed the action with prejudice. Johnson timely appealed.
The district court in 94-60308 (which is essentially identical
to 94-60289) first noted that Johnson's claim more appropriately
sounded in habeas. The district court then held that because
Johnson's complaint did not assert a viable constitutional
challenge, it could be dismissed without first requiring Johnson to
exhaust his habeas remedies. Accordingly, the court also dismissed
this action with prejudice. Johnson appeals.
II.
These two actions were filed separately by Johnson and,
although both were filed in the Southern District of Mississippi,
each went to a different judge of that court.2 The appeals were
docketed separately in this court as well; because the claims
raised in the complaints and on appeal are virtually identical,
they have been consolidated.
A district court may dismiss an IFP complaint as frivolous
under § 1915(d) if it lacks an arguable basis in law or fact.
Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994). Such dismissals are
reviewed on appeal for abuse of discretion.
Johnson contends that his complaint constitutes a challenge to
the constitutionality of Mississippi's armed robbery statute and

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4
that he should not have been convicted of armed robbery because the
state failed to produce the gun used in the crime at trial.
He also contends that Mississippi's armed robbery statute
violates the Ex Post Facto clause of the Constitution, because it
was enacted after the Supreme Court's decision in In Re Winship,
397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), which
requires the state to prove each element of the crime alleged.
Johnson argues that Mississippi's armed robbery statute does not
satisfy the requirements of Winship because the statute does not
require the state to produce a gun at trial.
In Pittman v. Moore, 980 F.2d 994 (5th Cir. 1993), this court
held that a pro se prisoner's IFP civil rights action, duplicative
of a pending action already filed by that same prisoner, may be
dismissed as frivolous or malicious under § 1915(d). As this court
noted, "[w]hen declaring that a successive in forma pauperis suit
is `malicious' the court should insure that the plaintiff obtains
one bite at the litigation apple -- but not more." As Johnson's
second action--94-60308--falls squarely within this rule, we affirm
the dismissal of this suit on the alternative ground that it is
duplicative.
We also affirm the district court's dismissal of Johnson's
first action, 94-60289. The district court held that Johnson's
complaint did not state a viable constitutional claim for either
§ 1983 or § 2254 purposes. We agree with the district court that
Johnson's challenge clearly implicates the fact or length of his
confinement and should therefore have been brought pursuant to

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5
§ 2254. See Serio v. Members of La. State Bd. of Pardons, 821 F.2d
1112, 1117, 1119 (5th Cir. 1987). Nonetheless, if no
constitutional right is implicated, a habeas challenge improperly
brought under § 1983 may be dismissed rather than requiring the
plaintiff to exhaust his habeas remedies. See Thomas v. Torres,
717 F.2d 248 (5th Cir.), cert. denied, 465 U.S. 1010 (1984) (facts
asserted did not implicate a federal constitutional right).
In this case, Johnson's complaints do not implicate a federal
constitutional right. First, we know of no authority to support
Johnson's argument that the state cannot punish a person for using
a weapon without producing the weapon. In fact, this court has
already rejected Johnson's habeas petition challenging his
conviction despite the fact that the state did not produce any
weapon at trial. The court reasoned that "the eyewitness testimony
of Johnson's use of the gun is more than sufficient to enable a
reasonable jury to return a guilty verdict of armed robbery."
Johnson II, 978 F.2d at 860. Therefore, the state's failure to
produce the gun does not invalidate Johnson's conviction. The
district courts in both cases did not abuse their discretion by
dismissing Johnson's actions as frivolous. See Eason, 14 F.3d at
9.
AFFIRMED.

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