IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40004 Conference Calendar

RICARDO SABEDRA,

Plaintiff-Appellant, versus

GARY L. JOHNSON,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:00-CV-283 - - - - - - - - - - April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Ricardo Sabedra, Texas prisoner #395270, appeals from the

dismissal, without prejudice, of his suit invoking

. The district court concluded that Sabedra’s complaint

should be construed as a federal petition for habeas corpus

relief and dismissed without prejudice for failure to exhaust

state court remedies. Sabedra’s failure to identify any error in

the district court’s legal analysis or its application to his

lawsuit “is the same as if he had not appealed that judgment.”

Brinkmann v. Dallas County Deputy Sheriff Abner,

,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40004 - 2 -

748 (5th Cir. 1987).

Sabedra’s appeal is without merit and therefore frivolous.

See Howard v. King,

(5th Cir. 1983).

Because the appeal is frivolous, it is DISMISSED. See 5TH CIR. R.

42.2. Our dismissal of this appeal counts as a strike against

Sabedra for purposes of

(g). We caution Sabedra

that once he accumulates three strikes, 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

(g).

APPEAL DISMISSED; SANCTION WARNING ISSUED.