                                                                            FILED
                             NOT FOR PUBLICATION                             AUG 30 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



MICHAEL LENOIR SMITH,                            No. 09-15015

               Plaintiff - Appellant,            D.C. No. 2:08-cv-01788-MCE

  v.
                                                 MEMORANDUM *
STATE OF CALIFORNIA,

               Defendant - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                  Morrison C. England, Jr., District Judge, Presiding

                             Submitted August 10, 2010 **

Before:        O’SCANNLAIN, HAWKINS, and IKUTA, Circuit Judges.

       Michael Lenoir Smith, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that the

use of California’s “three strikes” law in sentencing him violated his constitutional




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
rights. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Resnick

v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and we affirm.

      The district court properly concluded that Smith’s claims may not be

pursued as part of a § 1983 action. See Heck v. Humphrey, 512 U.S. 477, 486-87

(1994).

      To the extent Smith challenges the Supreme Court’s decision in Heck, we

are bound to follow that decision until it is explicitly overruled by that Court. See

Agostini v. Felton, 521 U.S. 203, 237 (1997) (lower courts should “‘leav[e] to this

Court the prerogative of overruling its own decisions’”). To the extent Smith

makes a facial challenge to California’s “three strikes” law, and has standing to do

so, the Supreme Court has upheld California’s “three strikes” law against

constitutional challenge, see Ewing v. California, 538 U.S. 11, 24-28 (2003), and

we are bound by that decision, see Agostini, 521 U.S. at 237.

      AFFIRMED.




                                           2                                    09-15015
