                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT               September 21, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-20014
                         Summary Calendar




IVO NABELEK,

                                    Plaintiff-Appellant,

versus

HONORABLE COURT OF CRIMINAL APPEALS AND ALL OF ITS ACTIVE
JUSTICES; CHARLES BACARISSE, Honorable District Clerk of Harris
County; DENISE COLLINS, Honorable Judge 208th District Court of
Harris County, DEBBIE MANTOOTH-STRICKLIN, Honorable, Judge 180th
Judicial District Court of Harris County Texas,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-03-CV-4660
                      --------------------

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

     Ivo Nabelek, Texas state prisoner # 669748, appeals from the

dismissal of his civil action as frivolous and for failure to state

a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), (ii). Nabelek’s

complaint arose from his state habeas corpus proceedings.       Nabelek

argues that the district court erred by construing his 42 U.S.C. §



     *
       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this opinion should not be published and is not precedent except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. 04-20014
                                     -2-

1983 claims as habeas corpus claims because his claims were not

cognizable in habeas.

     We do not construe Nabelek’s complaint as raising habeas

corpus claims. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).

Rather, we construe the action as one seeking mandamus relief,

relief the district court lacked jurisdiction to grant, and we

AFFIRM the district court’s dismissal of the action as frivolous.

See Santee v. Quinlan, 115 F.3d 355, 356-57 (5th Cir. 1997); Moye

v. Clerk, DeKalb County Superior Court, 474 F.2d 1275, 1275-76 (5th

Cir. 1973).     For the convenience of the courts in this circuit, we

note that because the action underlying Nabelek’s district-court

action   was    a   state   habeas   proceeding,    the   dismissal   of   the

complaint and the affirmance on appeal do not count as a strike for

purposes of 28 U.S.C. § 1915(g).           Cf. In re Jacobs, 213 F.3d 289,

290-91 (5th Cir. 2000).

     Nabelek argues that the district court erred in applying the

filing   fee    requirements    of   the   Prison   Litigation   Reform    Act

(“PLRA”).      Under the doctrine of invited error, Nabelek may not

complain of any error by the district court in applying the PLRA

filing fee requirements because Nabelek induced any such error by

seeking leave to proceed IFP in an action he filed as a 42 U.S.C.

§ 1983 action.       See, e.g., United States v. Baytank (Houston),

Inc., 934 F.2d 599, 606-07 (5th Cir. 1991); Capella v. Zurich Gen.

Acc. Liab. Ins. Co., 194 F.2d 558, 560 (5th Cir. 1952).
                            No. 04-20014
                                 -3-

     Nabelek   has   demonstrated   no   abuse   of   discretion   in   the

district court’s denial of his motion for the appointment of

counsel or in the district court’s issuance of a sanction warning.



     AFFIRMED; ALL OUTSTANDING MOTIONS ARE DENIED.
