                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         August 26, 2003
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                           No. 03-20256
                         Summary Calendar



CHRISTOPHER NEAL KINGERY,

                                    Plaintiff-Appellant,

versus

JEFFREY KARL HALE,

                                    Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-02-CV-3856
                       --------------------

Before SMITH, DeMOSS and STEWART, Circuit Judges.

PER CURIAM:*

     Christopher Neal Kingery, Texas prisoner # 1066564, appeals

the dismissal of his 42 U.S.C. § 1983 suit as frivolous.       Kingery

filed suit against the attorney who represented him in his

criminal case and alleged that his attorney was friends with the

prosecutor and provided ineffective assistance.

     We review for an abuse of discretion the district court's

determination that Kingery’s complaint was frivolous.      See Siglar


     *
        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that this opinion should not be published and is not precedent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. 03-20256
                                -2-

v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).      A complaint is

frivolous if it lacks an arguable basis either in law or in fact.

Denton v. Hernandez, 504 U.S. 25, 31-33 (1992).

     Kingery’s claims that his attorney conspired with the

prosecutor and provided ineffective assistance of counsel

challenge the constitutionality of Kingery’s conviction, which

has not been reversed or called into question on direct appeal or

in a habeas proceeding.   The claim is barred by Heck v. Humphrey,

512 U.S. 477, 486-87 (1994).

     The district court’s dismissal was not an abuse of

discretion.   Kingery’s appeal lacks arguable merit and is also

DISMISSED AS FRIVOLOUS.   See Howard v. King, 707 F.2d 215, 219-20

(5th Cir. 1983); 5TH CIR. 42.2.    The district court's dismissal

and the dismissal of his appeal both count as strikes for the

purposes of 28 U.S.C. § 1915(g).      Adepegba v. Hammons, 103 F.3d

383, 385-87 (5th Cir. 1996).      Kingery is warned that, if he

accumulates a third strike pursuant to 28 U.S.C. § 1915(g), 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 AS FRIVOLOUS; SANCTION WARNING ISSUED.
