          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                  April 30, 2009
                                No. 08-30562
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

EDDIE J ARMANT

                                            Plaintiff-Appellant

v.

CONNIE KENNEDY; JAMES LEBLANC; RICHARD STALDER; PEGRAM J
MIRE, JR; EDWARD DUFRANCE; LOUISIANA SUPREME COURT PANEL

                                            Defendants-Appellees


                 Appeal from the United States District Court
                     for the Middle District of Louisiana
                           USDC No. 3:08-CV-108


Before JONES, Chief Judge, and JOLLY and ELROD, Circuit Judges.
PER CURIAM:*
      Eddie J. Armant, Louisiana prisoner # 150261, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 action as frivolous. Armant has filed a motion
to proceed in forma pauperis (IFP) on appeal, challenging the district court’s
certification, pursuant to Baugh v. Taylor, 117 F.3d 197, 199-202 (5th Cir. 1997),
that his appeal was not taken in good faith.




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-30562

      Armant contends that his constitutional rights were violated due to the
imposition of an “illegally lenient” sentence. Specifically, he avers that the trial
court, in imposing his 40-year sentence following his conviction for attempted
second-degree murder, failed to specify that the sentence was to be served
without benefit of probation, parole, or suspension of sentence. Armant contends
that, in December 2005, prison officials recalculated his release date and failed
to provide for parole consideration, thereby resulting in confinement beyond his
appropriate release date.
      As the district court found, Armant’s claims are barred because he is
seeking to recover damages for an allegedly unconstitutional sentence that has
not been reversed on appeal or in a postconviction proceeding. See Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994). Armant has not demonstrated that he
will raise a nonfrivolous issue on appeal. See Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983). Accordingly, Armant’s motion to proceed IFP is denied.
See Baugh, 117 F.3d at 202 n.24. Because his appeal is frivolous, see Howard,
707 F.2d at 219-20, his appeal is dismissed. See 5 TH C IR. R. 42.2.
      The dismissal of this appeal as frivolous and the district court’s dismissal
as frivolous count as strikes under the Prison Litigation Reform Act.           See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Accordingly,
Armant is cautioned that if he accumulates three strikes, he will not be
permitted 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.” 28 U.S.C. § 1915(g).
      IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.




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