     Case: 17-20718      Document: 00514642723         Page: 1    Date Filed: 09/14/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                   United States Court of Appeals

                                    No. 17-20718
                                                                            Fifth Circuit

                                                                          FILED
                                  Summary Calendar                September 14, 2018
                                                                     Lyle W. Cayce
GARY LEE MOUNT,                                                           Clerk


                                                 Plaintiff-Appellant

v.

JOHN WAKEFIELD; KATHERINE CABANISS; COURT OF CRIMINAL
APPEALS; THEODORE HAYNES, JR.,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CV-2987


Before DENNIS, CLEMENT, and OWEN, Circuit Judges
PER CURIAM: *
       Gary Lee Mount, Texas prisoner # 1969963, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint. Mount alleged that the defendants
violated his Sixth Amendment rights to a speedy trial and the effective
assistance of counsel, as well as his Fourteenth Amendment rights to
procedural and substantive due process. The district court granted Mount’s



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-20718

motion to proceed in forma pauperis (IFP) and, pursuant to 28 U.S.C.
§ 1915A(b)(1), dismissed his § 1983 complaint as frivolous because his claims
were barred by Heck v. Humphrey, 512 U.S. 477 (1994).
      Despite § 1983’s broad language, Mount’s speedy trial, ineffective
assistance of counsel, and due process claims “lie within the core of habeas
corpus.” Wilkinson v. Dotson, 544 U.S. 74, 79 (2005) (internal quotation marks
and citation omitted). Further, regardless of the relief sought, success on these
claims would necessarily imply the unlawfulness of Mount’s aggravated
kidnapping and aggravated sexual assault convictions. See id. at 81-82; cf.
Skinner v. Switzer, 562 U.S. 521, 525 (2011). Because Mount failed to allege
or demonstrate that his convictions have “been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’s issuance
of a writ of habeas corpus,” Heck, 512 U.S. at 487, his claims were not
cognizable under § 1983, and the district court did not err in dismissing his
complaint as frivolous, see Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996).
Accordingly, the district court’s judgment is affirmed. Mount’s motion for the
appointment of counsel on appeal is denied. See Ulmer v. Chancellor, 691 F.2d
209, 212 (5th Cir. 1982).
      For the first time on appeal, Mount contends that: (1) appellate counsel
was ineffective in failing to raise the speedy trial issue on direct appeal; (2) his
convictions for aggravated kidnapping and aggravated sexual assault violated
his right against double jeopardy because they rested on the same factual
predicate; (3) trial and appellate counsel were ineffective in failing to object to
and challenge the double jeopardy violation; (4) the use of his prior burglary of
a habitation conviction for enhancement purposes was improper; (5) the trial
court erred in allowing the State to impeach him based on a prior conviction



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                                  No. 17-20718

that was more than ten years old; and (6) trial counsel was ineffective in failing
to afford him an opportunity to consider the State’s plea bargain offer. These
claims will not be considered. See Stewart Glass & Mirror, Inc. v. U.S. Auto
Glass Disc. Ctrs., Inc., 200 F.3d 307, 316-17 (5th Cir. 2000).
      The district court’s dismissal of Mount’s § 1983 complaint as frivolous
counts as a strike under 28 U.S.C. § 1915(g). Because he has accumulated at
least one strike, Mount is cautioned that if he accumulates three strikes under
§ 1915(g), he will not be able to 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 § 1915(g).
      AFFIRMED; MOTION DENIED; SANCTION WARNING ISSUED.




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