                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 4, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-40032
                         Summary Calendar



BONNIE BURNETTE ERWIN,

                                    Plaintiff-Appellant,

versus

J.B. SMITH, Sheriff, Smith County; JOHN
BEDDINGFIELD, Chief Deputy Sheriff, Smith
County, Texas; BOBBY GARMON, Chief Deputy
Sheriff, Smith County, Texas; JACK SKEEN, JR.,
District Attorney, Smith County, Texas; RICHARD
L. MOORE, Chief Prosecuting Attorney, Smith
County, Texas; ET AL.,

                                    Defendants-Appellees.

                       --------------------
          Appeals from the United States District Court
                for the Eastern District of Texas
                       USDC No. 6:03-CV-374
                       --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Bonnie Burnette Erwin, currently federal prisoner # 14289-

077, appeals the district court’s dismissal as frivolous of his

civil rights action brought pursuant to 42 U.S.C. § 1983 and

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388 (1971).   In his complaint, Erwin asserted that


     *
       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this opinion should not be published and is not precedent except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. 04-40032
                                -2-

various state and federal employees engaged in a racially

motivated conspiracy that resulted in his state conviction and

death sentence for the kidnaping and murder of Patrick Brooks

(which has since been overturned) and federal convictions for

various drug, weapon, and criminal enterprise convictions arising

from the same activity.   The district court concluded that

Erwin’s challenges to his state conviction were untimely and that

his challenges to the federal conviction were barred by Heck v.

Humphrey, 512 U.S. 477 (1994).

     Erwin asserts that because he is an indigent prisoner, the

district court erred in denying him leave to proceed in forma

pauperis (IFP) in the district court and on appeal.     The district

court granted Erwin IFP status in both instances.    Although the

court assessed an initial partial filing fee in both cases, such

actions are authorized by statute.   See 28 U.S.C. § 1915(b)(1).

     Erwin asserts that the district court erred in denying his

motion for appointment of counsel.   He has not shown

extraordinary circumstances warranting such an appointment.

Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).

     Erwin contends that the district court erred in dismissing

his complaint without serving the defendants and without allowing

him an opportunity to amend his complaint.   The district court

was authorized to dismiss the complaint “at any time” if it

determined that Erwin had failed to state a claim.    28 U.S.C.

§ 1915(e)(2).   Moreover, Erwin has not established that his
                            No. 04-40032
                                 -3-

factual allegations could have been remedied through amendment,

so the district court did not abuse its discretion in dismissing

the case without providing Erwin an opportunity to amend.     See

Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).

     Erwin has not established that his federal convictions have

been overturned or invalidated or that his challenges to those

convictions would necessarily call into question the validity of

his federal convictions.    See Heck, 512 U.S. at 484-87.

Likewise, Erwin has not established that his challenges to his

overturned state conviction were not barred by the applicable

two-year limitations period.    See Owens v. Okure, 488 U.S. 235,

249-50 (1989); TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West

2004).   The district court therefore did not abuse its discretion

in dismissing Erwin’s complaint as frivolous.     See Siglar v.

Hightower, 112 F.3d 191, 193 (5th Cir. 1997).

     Erwin’s appeal is without arguable merit and is thus

frivolous.   See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983).   Accordingly, we DISMISS Erwin’s appeal as frivolous.       See

5TH CIR. R. 42.2.   This dismissal of his appeal as frivolous and

the district court’s dismissal of his complaint as frivolous

constitute two “strikes” for the purposes of 28 U.S.C. § 1915(g).

See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).       If

Erwin obtains three “strikes,” he will not be able to proceed IFP

in any civil action or appeal filed while he is incarcerated or
                           No. 04-40032
                                -4-

detained in any facility unless he is under imminent danger of

serious physical injury.   See 28 U.S.C. § 1915(g).

     Erwin has moved for appointment of counsel on appeal.

Because he has not shown extraordinary circumstances warranting

such an appointment, the motion is DENIED.   See Ulmer, 691 F.2d

at 212.   Erwin’s motion for immediate release pending his appeal

is likewise DENIED.

     APPEAL DISMISSED; MOTIONS DENIED.
