     Case: 11-60327     Document: 00511728766         Page: 1     Date Filed: 01/18/2012




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

                                                                            FILED
                                                                         January 18, 2012
                                     No. 11-60327
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ROBERT LENOIR,

                                                  Plaintiff-Appellant

v.

LEE J. HOWARD, Judge; JIMMY KITCHENS, Prosecutor; STEVEN HAYNES,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 1:11-CV-17


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        A jury convicted Robert Lenoir, Mississippi prisoner # K1175, of murder,
and he was sentenced to life in prison. Now, Lenoir appeals the district court’s
dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim
upon which relief could be granted of his pro se, in forma pauperis (IFP), 42
U.S.C. § 1983 civil rights complaint. We review de novo the district court’s
dismissal. Hale v. King, 642 F.3d 492, 497 (5th Cir. 2011).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-60327

      Lenoir sought money damages, arguing that he was denied a fair trial
because the judge and prosecutor allowed the witness who testified regarding
the forensic pathology evidence to provide perjured testimony. The district court
concluded that Lenoir’s claims were barred by Heck v. Humphrey, 512 U.S. 477
(1994). On appeal, Lenoir asserts that his success on the merits would not
invalidate his conviction. He also asserts conclusionally that success would only
lead to DNA testing on a knife, which also would not invalidate his conviction.
      The test to determine whether a claim is barred by Heck is not whether
success would invalidate the conviction, but whether a judgment in favor of the
plaintiff would “necessarily imply the invalidity of his conviction or sentence.”
Heck, 512 U.S. at 486-87. As found by the district court, Lenoir’s claim that he
was wrongly convicted based on constitutional violations at trial, namely the use
of perjured testimony, necessarily implies that his conviction was invalid. Id. at
487; see also Stephenson v. Reno, 28 F.3d 26, 27-28 (5th Cir. 1994) (concluding
that a prisoner’s claims that, inter alia, court-appointed counsel rendered
ineffective assistance, the district court illegally indicted and sentenced him, and
the named defendants conspired to violate his constitutional rights, were barred
by Heck). Lenoir’s assertion regarding DNA testing is deemed waived because
he does not adequately brief the issue. See Turner v. Quarterman, 481 F.3d 292,
295 n.1 (5th Cir. 2007). Accordingl1y, until Lenoir’s conviction is overturned,
expunged, or otherwise invalidated, his claims challenging the validity of his
criminal trial are barred by Heck. See Heck, 512 U.S. at 486-87.
      The appeal is without arguable merit and is thus frivolous. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous,
it is dismissed. See 5TH CIR. R. 42.2. The district court’s dismissal of Lenoir’s
complaint and this court’s dismissal of his appeal both count as strikes for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-
88 (5th Cir. 1996). Lenoir previously accumulated one strike and has now,
therefore, accumulated three strikes. See Lenoir v. Palmer, et. al., No. 1:10-CV-

                                         2
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                                 No. 11-60327

00119, slip op. at 1 (N.D. Miss. July 22, 2010) (unpublished). Accordingly, he is
barred from proceeding IFP in any civil action or appeal filed in a court of the
United States while he is incarcerated or detained in any facility unless he “is
under imminent danger of serious physical injury.” § 1915(g). Lenoir is also
warned that any future frivolous or repetitive filings in this court or any court
subject to this court's jurisdiction will subject him to additional sanctions. He
should review all pending appeals to ensure that they are not frivolous.
      APPEAL DISMISSED; 1915(g) BAR IMPOSED; SANCTION WARNING
ISSUED.




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