                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 21, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-41404
                         Summary Calendar



PHILLIP JOE BARNES,

                                    Plaintiff-Appellant,

versus

TIMOTHY BRAATEN, Chief of Police for City of Victoria;
VICTORIA POLICE DEPARTMENT; HUBERT TUCKER, JR.;
MIKE HERNANDEZ; JAMES MARTINEZ; ROY BOYD,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. V-00-CV-95
                      --------------------

Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM:*

     Phillip Joe Barnes, Texas prisoner # 887643, proceeding pro

se, requests permission to proceed in forma pauperis (IFP) in his

appeal from the district court’s dismissal of his 42 U.S.C.

§ 1983 complaint as frivolous, pursuant to 28 U.S.C. § 1915(e).

Citing FED. R. APP. P. 24(a)(3) and 28 U.S.C. § 1915(a)(3), the

district court certified that Barnes’s appeal was “not taken in

good faith.”   Barnes argues that the district court erred in

     *
        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that this opinion should not be published and is not precedent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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                                -2-

failing to certify his appeal as one in good faith because the

Heck v. Humphrey, 512 U.S. 477, 487 (1994), bar did not apply

because his claim of an unlawful search does not necessarily

imply the invalidity of his conviction, which was based on a

valid nolo contendere plea.

     The district court provided no reason for certifying

Barnes’s appeal as one not taken in good faith.    However, Barnes

makes no issue of the fact that the district court failed to give

its reason for decertification, and we view the district court’s

reason to be that Barnes’s suit is barred by Heck.

     We grant Barnes’s motion to proceed IFP on appeal on the

underlying Heck issue.   Barnes has submitted a brief in support

of his IFP application that adequately addresses the application

of Heck to the facts of his case.    Accordingly, we will proceed

to the merits of his appeal.

     In Heck, the Supreme Court directed that, “in order to

recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose

unlawfulness would render a conviction or sentence invalid,” a 42

U.S.C. § 1983 plaintiff must prove that the conviction or

sentence has been reversed on direct appeal or otherwise

invalidated by official action.     Id. at 486-87 (footnote

omitted).   The “district court must consider whether a judgment

in favor of the plaintiff would necessarily imply the invalidity

of his conviction or sentence; if it would, the complaint must be
                            No. 03-41404
                                 -3-

dismissed unless the plaintiff can demonstrate that the

conviction or sentence has already been invalidated.”     Id. at

487.    However, “if the district court determines that the

plaintiff’s action, even if successful, will not demonstrate the

invalidity of any outstanding criminal judgment against the

plaintiff, the action should be allowed to proceed, in the

absence of some other bar to the suit.”     Id. (footnote omitted)

In footnote seven, the Supreme Court explained that a suit for

damages attributable to an allegedly unreasonable search may lie

even if the challenged search produced evidence that was

introduced in a state criminal trial resulting in the 42 U.S.C.

§ 1983 plaintiff’s still-outstanding conviction.     Id. at 487 n.7.

The Court reasoned that such an action, even if successful, might

not necessarily imply that the plaintiff’s conviction was

unlawful in light of doctrines like independent source,

inevitable discovery, and harmless error.     Id.

       For the first time on appeal, Barnes argues for the

application of the “inevitable discovery” or “independent source”

rules.    Nor did he present this argument in his motion to set

aside the verdict; wherein, he simply argued that Heck does not

apply because he pleaded nolo contendre to the charges and

stipulated to the admissibility of the crack cocaine. Lederette

v. Louisville Ladder Co., 183 F.3d 339 at 342 (5th Cir. 1999)

(“The court will not allow a party to raise an issue for the

first time on appeal merely because a party believes that he
                            No. 03-41404
                                 -4-

might prevail if given the opportunity to try a case again on a

different theory.”)

     In his complaint, Barnes merely alleged that the defendants

conducted a warrantless search and that “evidence was illegally

obtained and utilized to initiate a criminal prosecution against

the Plaintiff.”   In his response to the district court’s order

for a more definite statement, Barnes stated that “[c]rack

cocaine was found in the motel room.   The substance found in the

motel room was used against the Plaintiff in a criminal

proceeding.”   Based on these allegations, the district court

properly dismissed Barnes’ complaint, which on its face, alleges

that evidence obtained from an illegal search (crack cocaine) was

used to initiate a criminal prosecution (for illegal possession

of crack cocaine).    These allegations necessarily implicate the

validity of the entire criminal proceeding brought against

Barnes.   See Hudson v. Hughes, 98 F.3d 868, 871-72 (5th Cir.

1996).

     Although there may be situations where an illegal search and

seizure does not implicate the underlying conviction, Barnes did

not allege in his complaint or more definite statement any facts

that would bring his case under the exceptions contemplated by

footnote 7 of Heck.    Rather, the allegations in his complaint

directly link the improper police conduct with the initiation of

his criminal prosecution.   Accordingly, the district court’s

dismissal is AFFIRMED.
                     No. 03-41404
                          -5-

IFP GRANTED; the decision below AFFIRMED.
