IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40299 Conference Calendar

JAMES HANES,

Plaintiff-Appellant,

versus

WEBB BAIRD, Sixth District Court Lamar County Judge,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 3:98-CV-85 -------------------- April 10, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

James Hanes, Texas prisoner # 559496, appeals the district

court’s dismissal of his civil complaint as frivolous. He argues

that the plea agreement pertaining to his state conviction was

invalid, that the state trial court did not inquire about the

agreement and lacked jurisdiction over Hanes’ criminal case, and

that the district court erroneously construed Hanes’ suit as a

complaint as opposed to a contractual claim.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-40299 -2-

A district court may dismiss an IFP complaint as frivolous

under

(e)(2)(B)(i) if it lacks an arguable basis

either in law or in fact. Siglar v. Hightower,

(5th Cir. 1997). We review such a dismissal for abuse of

discretion.

Under Heck v. Humphrey,

(1994), with

respect to a civil case pertaining to a conviction, “the district

court must consider whether a judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction or

sentence.” A prisoner may not bring a civil action seeking

damages or declaratory relief based upon a wrongful conviction

unless the conviction has been reversed, expunged, or otherwise

declared invalid. See

.

Hanes’ complaint and appeal seek to challenge the validity

of his conviction through a civil suit. The district court did

not abuse its discretion for dismissing the complaint as

frivolous. See Heck,

. Hanes’ appeal lacks

arguable merit and is DISMISSED AS FRIVOLOUS. See Howard v.

King,

(5th Cir. 1983); 5th Cir. R. 42.2.

The district court’s dismissal as frivolous under § 1915 counts

as a strike against Hanes. See Adepegba v. Hammons,

(5th Cir. 1996). This court’s dismissal counts as

another strike.

If Hanes 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 in imminent

danger of serious physical injury. See

(g).

Hanes is cautioned to review any pending appeals to ensure that No. 00-40299 -3-

they do not raise frivolous issues. His motion for the

appointment of counsel is DENIED.