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

                                                                 FILED
                                                             December 11, 2007
                                No. 06-51547
                             Conference Calendar            Charles R. Fulbruge III
                                                                    Clerk
MARK DALTON SIMPSON

                                           Plaintiff-Appellant

v.

SUSAN D REED, District Attorney; MRS C CHANDLER, Assistant District
Attorney; PAT PRIEST, District Judge

                                           Defendants-Appellees


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 5:06-CV-684


Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
      Mark Dalton Simpson, Texas prisoner # 1316290, has filed a motion for
leave to proceed in forma pauperis (IFP) on appeal. The district court denied
Simpson’s motion to appeal IFP and certified that the appeal was not taken in
good faith. By moving for leave to proceed IFP, Simpson is challenging the
district court’s certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997). Simpson also moves for appointment of counsel on appeal.



      *
      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should not be published and is not precedent except under the limited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. 06-51547

      For the first time in his brief, Simpson argues he is actually innocent of
the offense of conviction, challenges the legal and factual sufficiency of the
evidence, and raises new claims of ineffective assistance of counsel. These issues
were not presented to the district court and will not be considered for the first
time in Simpson’s motion. See Leverette v. Louisville Ladder Co., 183 F.3d 339,
342 (5th Cir. 1999). Simpson’s motion addresses only the issues raised in his 42
U.S.C. § 1983 complaint.     He does not brief any argument regarding the
dismissal of his complaint as barred by Heck v. Humphrey, 512 U.S. 477, 486-87
(1994), immunity, and failure to exhaust state remedies. Failure to identify an
error in the district court’s analysis is the same as if the appellant had not
appealed the judgment. Brinkmann v. Dallas County Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987). Although pro se briefs are liberally construed,
even pro se litigants must brief arguments in order to preserve them. Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993).
      Simpson has not shown that the district court’s determination that his
appeal would be frivolous was incorrect. The instant appeal is without arguable
merit and is thus frivolous. Accordingly, Simpson’s requests for IFP status and
appointment of counsel are denied, and his appeal is dismissed. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. Simpson is
cautioned that the dismissal of his § 1983 suit by the district court pursuant to
28 U.S.C. § 1915A(e)(2)(B) and our dismissal of this appeal as frivolous both
count as strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 385-87 (5th Cir. 1996). Simpson is also cautioned that if he accumulates
three strikes under § 1915(g), 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 § 1915(g).
      MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.



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