Herron v. Cockrell, 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that this opinion should not be published and is not precedent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
October 22, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-21328
Conference Calendar
LARRY LEONARD HERRON,
Plaintiff-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION; IBEAM HARRY; COLLETTE,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-3842
--------------------
Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Larry Leonard Herron, Texas prisoner # 00715927, appeals
the district court’s dismissal of his 42 U.S.C. § 1983 action
as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(b)(1). Herron’s
motion for appointment of counsel is DENIED. Herron acknowledges
that the Supreme Court has ruled that the retroactive application
of “Megan’s laws” requiring sexual offender registration and
notification do not violate the Ex Post Facto Clause. See

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No. 02-21328
-2-
Smith v. Doe, 123 S. Ct. 1140, 1154 (2003); Connecticut
Department of Public Safety v. Doe, 123 S. Ct. 1160, 1164-65
(2003) (notification provisions of sex offender registration
law do not violate procedural due process); see also Moore
v. Avoyelles Correctional Center, 253 F.3d 870, 872 (5th Cir.
2001) (Louisiana sex offender notification law does not violate
the Constitution’s proscription of ex post facto laws.).
However, Herron contends that the law still violates the Due
Process Clause because it discriminates against him. Herron
states that he was convicted in cause no. 916850 on February 12,
2003, for failure to comply as a sex offender. He states that
his failure to comply charge is now on appeal due to the fact
that his plea was coerced and involuntary. He also attacks his
guilty plea to the original sexual offense.
Herron’s brief, with its continued references to alleged
constitutional violations in connection with his convictions
for the original sexual offense requiring his registration, a
previous firearms offense, DWI, and failure to comply with the
sexual offender registration law, shows that the district court
was correct to interpret Herron’s complaint as a challenge to a
pending state criminal proceeding or a habeas petition. Herron
makes no argument challenging the district court’s reasons for
dismissing his complaint in this regard. The district court did
not abuse its discretion in dismissing Herron’s 42 U.S.C. § 1983
complaint as frivolous. Siglar v. Hightower, 112 F.3d 191, 193

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No. 02-21328
-3-
(5th Cir. 1997). Herron’s appeal is without arguable merit and
is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because the appeal is frivolous, it is DISMISSED. See
5th Cir. R. 42.2.
Herron is hereby informed that the dismissal of this appeal
as frivolous counts as a strike for purposes of 28 U.S.C. § 1915(g),
in addition to the strike for the district court’s dismissal.
See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996)
(“[D]ismissals as frivolous in the district courts or the court
of appeals count [as strikes] for the purposes of [§ 1915(g)].”).
We caution Herron that once he accumulates three strikes, he
may not proceed IFP 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.

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