Kingery v. Hale

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 26, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-20256
Summary Calendar
CHRISTOPHER NEAL KINGERY,
Plaintiff-Appellant,
versus
JEFFREY KARL HALE,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-3856
--------------------
Before SMITH, DeMOSS and STEWART, Circuit Judges.
PER CURIAM:*
Christopher Neal Kingery, Texas prisoner # 1066564, appeals
the dismissal of his 42 U.S.C. § 1983 suit as frivolous. Kingery
filed suit against the attorney who represented him in his
criminal case and alleged that his attorney was friends with the
prosecutor and provided ineffective assistance.
We review for an abuse of discretion the district court's
determination that Kingery’s complaint was frivolous. See Siglar

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No. 03-20256
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v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A complaint is
frivolous if it lacks an arguable basis either in law or in fact.
Denton v. Hernandez, 504 U.S. 25, 31-33 (1992).
Kingery’s claims that his attorney conspired with the
prosecutor and provided ineffective assistance of counsel
challenge the constitutionality of Kingery’s conviction, which
has not been reversed or called into question on direct appeal or
in a habeas proceeding. The claim is barred by Heck v. Humphrey,
512 U.S. 477, 486-87 (1994).
The district court’s dismissal was not an abuse of
discretion. Kingery’s appeal lacks arguable merit and is also
DISMISSED AS FRIVOLOUS. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983); 5TH CIR. 42.2. The district court's dismissal
and the dismissal of his appeal both count as strikes for the
purposes of 28 U.S.C. § 1915(g). Adepegba v. Hammons, 103 F.3d
383, 385-87 (5th Cir. 1996). Kingery is warned that, if he
accumulates a third strike pursuant to 28 U.S.C. § 1915(g), 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).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.

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