Berryhill v. Windsor, et al

No. 00-60047
-1-
* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60047
Conference Calendar
ANTHONY MARK BERRYHILL,
Plaintiff-Appellant,
versus
RONALD WINDSOR, Attorney at Law;
TERRY L. WOOD; JOHN YOUNG;
JIM POUNDS; FRANK A. RUSSELL,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:99-CV-341-P-A
--------------------
April 11, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges
PER CURIAM:*
Anthony Mark Berryhill, Mississippi prisoner # 78551,
appeals from the dismissal of his civil rights action filed
pursuant to 42 U.S.C. § 1983. On appeal, he asserts that his
trial counsel misadvised him by instructing him to plead guilty
to the wrong charge and by directing him to admit to some prior
convictions for sentence-enhancement purposes. In addition,
Berryhill’s brief sets forth several claims of error on the part
of the trial court.

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No. 00-60047
-2-
Berryhill has not briefed the one issue presented for
appeal: whether his § 1983 action is barred by Heck v. Humphrey,
512 U.S. 477 (1994). Accordingly, he has waived this issue. See
Gann v. Fruehauf Corp., 52 F.3d 1320, 1328 (5th Cir. 1995).
This appeal is frivolous, and we dismiss it as such. Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.
The district court’s dismissal of Berryhill’s complaint as
legally frivolous and this court’s dismissal of the appeal as
frivolous count as two “strikes” for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th
Cir. 1996). Berryhill is hereby advised that if he accumulates
three “strikes” under § 1915(g), he will be barred from
proceeding 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 § 1915(g).
To avoid sanctions, Berryhill is cautioned to review any pending
lawsuits and appeals to ensure that they do not raise arguments
that are frivolous.
APPEAL DISMISSED; SANCTIONS WARNING ISSUED.

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