Dufrene v. Brazoria Cty Dist, et al

* 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this opinion should not be published and is not precedent except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 16, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41740
Conference Calendar
RICKIE DUFRENE,
Plaintiff-Appellant,
versus
BRAZORIA COUNTY DISTRICT ATTORNEY OFFICE;
BRAZORIA COUNTY SHERIFF’S DEPARTMENT; JOHN DOE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:04-CV-45
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Rickie Dufrene, Texas inmate # 603712, appeals from the
dismissal of his 42 U.S.C. § 1983 suit pursuant to Heck v.
Humphrey, 512 U.S. 477 (1994), for failure to state a claim.
Dufrene’s claim was based on the alleged premature destruction of
evidence of his crime, which prevents Dufrene from availing
himself of the opportunity for DNA testing provided by Texas law.
We review the district court’s dismissal de novo, applying the

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No. 04-41740
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same standard used for FED. R. CIV. P. 12(b)(6) dismissals. See
Hart v. Hairston, 343 F.3d 762, 763-64 (5th Cir. 2003).
Dufrene argues that the district court misconstrued his
complaint as an attack on the validity of his conviction.
Notwithstanding Dufrene’s contentions, were the district court to
award Dufrene damages on his claim regarding the destruction of
evidence and the loss of the opportunity for DNA testing, the
validity of his conviction would be implicitly questioned. Under
Heck, Dufrene’s claim is not actionable because he has not shown
that his conviction has been reversed on direct appeal, expunged
by executive order, invalidated by other state means, or called
into question by the issuance of a federal habeas writ. See
Heck, 512 U.S. at 486.
Dufrene also argues that the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) is unconstitutional in various
respects. The AEDPA’s time-bar and successive-petition
provisions do not preclude Dufrene from achieving a favorable
termination, as required by Heck. See id. The AEDPA’s
provisions do not restrict Dufrene’s ability to file necessary
legal documents, and thus do not deny Dufrene his right of access
to the courts. See Brewer v. Wilkinson, 3 F.3d 816, 820-21 (5th
Cir. 1993). Nor do the AEDPA’s provisions violate the principle
of separation of powers, see Plaut v. Spendthrift Farm, Inc., 514
U.S. 211, 218-19 (1995), or violate the Suspension Clause. See
Felker v. Turpin, 518 U.S. 651, 664 (1996).

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No. 04-41740
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Dufrene’s appeal is without arguable merit and is therefore
dismissed as frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983). Both the district court’s
dismissal and this court’s dismissal of the instant appeal count
as strikes for purposes of 28 U.S.C. § 1915(g). See 28 U.S.C.
§ 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.
1996). Dufrene is cautioned that if he accumulates three strikes
under § 1915(g), he will not be able to 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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