     Case: 12-20563       Document: 00512296730         Page: 1     Date Filed: 07/03/2013




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

                                                                            FILED
                                                                            July 3, 2013
                                       No. 12-20563
                                                                           Lyle W. Cayce
                                                                                Clerk
LAMAR BURKS,

                                                  Plaintiff-Appellant

v.

Judge DENISE COLLINS; PATRICIA R. LYKOS, Harris County District
Attorney; GREG ABBOTT, Texas Attorney General,

                                                  Defendants-Appellees


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CV-2152


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Lamar Burks, Texas prisoner # 1011723, seeks permission to proceed in
forma pauperis (IFP) on appeal of a judgment dismissing his 42 U.S.C. § 1983
action as frivolous.       The district court certified, pursuant to 28 U.S.C.
§ 1915(a)(3) and Federal Rule of Appellate Procedure 24(a)(3), that the appeal
was not taken in good faith.
       By moving this court for leave to proceed IFP, Burks is challenging the
district court’s certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-20563

Cir. 1997). To proceed IFP, a litigant must be economically eligible, and the
appeal must be taken in good faith. Carson v. Polley, 689 F.2d 562, 586 (5th Cir.
1982). An appeal is taken in good faith if it raises legal points that are arguable
on the merits and thus nonfrivolous. Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983).
      Burks argues that the district court’s decision was contrary to the holding
in Skinner v. Switzer, 131 S. Ct. 1289 (2011), because he did not seek to
invalidate his state conviction or obtain immediate release from prison. Rather,
Burks contends that he challenged the constitutionality of two state laws,
namely Texas Rule of Civil Procedure 18b and Texas Disciplinary Rule of
Professional Conduct 8.04, as construed by the Texas Court of Criminal Appeals
and an intermediate appellate court when the courts denied his writs of
mandamus. Neither court, however, relied on these rules in denying Burks’s
writs. Accordingly, even if the Skinner case applied, it would be frivolous for
Burks to raise this argument on appeal. See Berry v. Brady, 192 F.3d 504, 507
(5th Cir. 1999).
      Liberally construed, Burks’s brief also includes an argument that Collins
violated his procedural due process rights in her construction of Rule 18b when
she refused to recuse herself from participating in his state habeas proceeding
after becoming the subject of an investigation he initiated and, additionally, that
Lykos and Abbott violated his constitutional rights in their construction of Rule
8.04 by failing to report Collins when she persisted in presiding over the
proceeding. However, even if Skinner, 131 S. Ct. at 1297-99, applied to these
arguments, Burks has failed to present a nonfrivolous appellate issue for the
following reasons. See Howard, 707 F.2d at 220.
      Specifically, Burks sought two types of relief under § 1983. First, he asked
the district court to order the state courts to conduct a habeas hearing before an
impartial judge. Second, he sought a federal court declaration and permanent
injunction to remove Judge Collins from his state case.

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                                   No. 12-20563

      As to his first request for relief, “federal courts have no authority to order
state courts to hold hearings in habeas matters.” O’Bryan v. Estelle, 714 F.2d
365, 408 (5th Cir. 1983). As to his second request, there is no ongoing criminal
or civil case over which Collins is presiding; therefore, Burks’s request to remove
her from his state case is moot. See Wilson v. Birnberg, 667 F.3d 591, 595 (5th
Cir.), cert. denied, 133 S. Ct. 32 (2012); Harris v. City of Houston, 151 F.3d 186,
191 & n.5 (5th Cir. 1998). Moreover, Burks has not presented any challenge to
the district court’s finding that his request for relief was moot. Accordingly, he
has not raised a nonfrivolous appellate issue as to that finding. See Howard, 707
F.2d at 220; Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
      In light of the foregoing, we dismiss Burks’s appeal as frivolous. See
Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. The district court’s dismissal of
Burks’s § 1983 action and our dismissal of his appeal count as two strikes for
purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.
1996). Burks has previously accumulated two strikes. See Burks v. Adams, No.
3:12-cv-00178 (S.D. Tex. Aug. 15, 2012); Burks v. Adams, No. 12-40947 (5th Cir.
Jan. 18, 2013); Burks v. Delarosa, No. 4:10-cv-02117 (S.D. Tex. June 18, 2010);
Burks v. Delarosa, No. 10-20444 (5th Cir. Oct. 20, 2010). He is thus BARRED
from proceeding 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).
      We caution Burks that frivolous, repetitive, or otherwise abusive filings
will invite the imposition of sanctions, including dismissal, monetary sanctions,
and/or restrictions on his ability to file pleadings in this court and any court
subject to this court’s jurisdiction. To avoid such sanctions, Burks should review
his pending appeals and actions and move to dismiss any that are frivolous.
      APPEAL DISMISSED; IFP MOTION DENIED; 28 U.S.C. § 1915(g) BAR
IMPOSED; SANCTION WARNING ISSUED.



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