               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-40004
                        Conference Calendar


RICARDO SABEDRA,

                                         Plaintiff-Appellant,
versus


GARY L. JOHNSON,

                                         Defendant-Appellee.

                         - - - - - - - - - -
           Appeal from the United States District Court
                 for the Eastern District of Texas
                        USDC No. 9:00-CV-283
                         - - - - - - - - - -
                            April 12, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

     Ricardo Sabedra, Texas prisoner #395270, appeals from the

dismissal, without prejudice, of his suit invoking 42 U.S.C.

§ 1983.   The district court concluded that Sabedra’s complaint

should be construed as a federal petition for habeas corpus

relief and dismissed without prejudice for failure to exhaust

state court remedies.   Sabedra’s failure to identify any error in

the district court’s legal analysis or its application to his

lawsuit “is the same as if he had not appealed that judgment.”

Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,


     *
        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that this opinion should not be published and is not precedent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. 01-40004
                               - 2 -

748 (5th Cir. 1987).

     Sabedra’s appeal is without merit and therefore 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.   Our dismissal of this appeal counts as a strike against

Sabedra for purposes of 28 U.S.C. § 1915(g).   We caution Sabedra

that once he accumulates three strikes, he may not proceed in

forma pauperis 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 28 U.S.C.

§ 1915(g).

     APPEAL DISMISSED; SANCTION WARNING ISSUED.
