                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         JUN 13 2001
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


ROY DALE BANKS,

          Plaintiff-Appellant,

v.
                                                       No. 01-3052
(FNU) MCFARLAND; (FNU) SIX;                        (District of Kansas)
(FNU) ALLEGRUCCI; (FNU)                        (D.C. No. 01-CV-3021-GTV)
FROMME; (FNU) LOCKETT; (FNU)
MILLER; JOHN DOE, Kansas
Supreme Court Justices,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before HENRY, BRISCOE, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Roy Dale Banks, an inmate proceeding pro se and in forma pauperis,

appeals the district court’s dismissal of his 42 U.S.C. § 1983 civil rights

complaint. In his complaint, Banks named as defendants various justices of the

Kansas Supreme Court who had participated in handing down the following three

decisions: State v Colbert, 769 P.2d 1168 (Kan. 1989); State v. Davis, 605 P.2d

572 (Kan. 1980); and State v. Robertson, 592 P.2d 460 (1979). Banks alleged that

these judicial decisions imposed an unconstitutional subjective standard for

evaluating the dangerous-weapon element of aggravated robbery. He sought a

declaratory judgment that this test violated clearly established constitutional

rights and an injunction to prevent further usage of the subjective standard to the

offense of aggravated robbery.

      The district court dismissed Banks’ complaint as frivolous pursuant to 28

U.S.C. § 1915(e)(2)(B). To the extent that Banks’ complaint stated a freestanding

challenge to the decisions listed above, none of which involved Banks, the district

court noted that it lacked Article III jurisdiction to consider the complaint. On

the other hand, to the extent that Banks was instead contending that the

application of these decisions caused him to be unconstitutionally convicted of

aggravated robbery, the district court noted that Banks’ remedy lies in a petition


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for writ of habeas corpus filed under 28 U.S.C. § 2254. See Preiser v. Rodriquez,

411 U.S. 475, 489 (1973) (holding that § 2254 habeas corpus petition is the

exclusive remedy where a state prisoner challenges the fact or duration of his

confinement).

      On appeal, Banks merely reasserts the same arguments he advanced in the

district court. It is absolutely clear, however, that Banks lacks standing to lodge a

generalized challenge to the defendants’ application of a subjective standard to

the dangerous-weapon element of aggravated robbery. See Schaffer v. Clinton,

240 F.3d 878, 882 (10th Cir. 2001) (setting forth elements of standing). Banks

does allege in his appellate brief that the “‘subjective test’ had a direct

infringement to plaintiff’s aggravated robbery conviction.” This assertion of

injury in fact merely serves to demonstrate the district court’s conclusion that

Banks’ sole remedy lies in a § 2254 habeas corpus petition. See Preiser, 411 U.S.

at 489.

      In light of the district court’s clear explanation of the controlling law in its

order of dismissal, this court concludes that Banks’ appeal is frivolous. See 28

U.S.C. § 1915(e)(2)(B)(i). Both the district court’s dismissal of the complaint

and this court’s dismissal of the appeal count as strikes under § 1915(g). See

Jennings v. Natrona County Det. Ctr., 175 F.3d 775, 780 (1999). Banks is hereby

warned that if he accrues one more strike, he will be precluded from proceeding


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in forma pauperis in any further civil proceedings unless he is under “imminent

danger of serious physical injury.” 28 U.S.C. § 1915(g). Banks is further

notified that despite this court’s dismissal of his appeal, he remains obligated to

continue making partial payments until his appellate filing fee is paid in full. See

id. § 1915(b).

      For those reasons set out above, this appeal is hereby DISMISSED.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




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