                        REVISED, October 13, 2000

                      UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit

                       ___________________________

                              No. 99-11092
                       ___________________________


                             TOMMY RANDELL,

                                                     Plaintiff-Appellant,

                                  VERSUS


 GARY L. JOHNSON, Director, Texas Department of Criminal Justice,
Institutional Division; MELINDA BOZARTH, Director, Texas Board of
          Pardons and Paroles; JOHN DOE, I; JOHN DOE, II,

                                                    Defendants-Appellees.

         ___________________________________________________

             Appeal from the United States District Court
                  For the Northern District of Texas

         ___________________________________________________
                         September 26, 2000

Before WOOD*, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:

     The district court held that Tommy Randell’s 42 U.S.C. § 1983

complaint for damages was frivolous and therefore dismissed his

complaint.    Because we determine that the complaint fails to state

a cause of action upon which relief may be granted, we affirm.



                                     I.

     Randell    was    arrested    and    charged   with    driving   while

     *
      Circuit Judge of the Seventh Circuit, sitting by designation.
intoxicated.     He alleges that he was incarcerated from September

27, 1996 until June 25, 1997 pursuant to a warrant from the Texas

Board of Pardons and Paroles, but was not given credit for this

time and therefore had to serve the time over again.

     By   June   18,    1999,   the   date   on   which    he   commenced   this

litigation, Randell was no longer in custody for the term of

confinement in dispute and therefore was ineligible for federal

habeas relief.2        He therefore pursued relief in forma pauperis

under § 1983, requesting compensatory damages of $1000 for each day

he had “served over his sentence.”           The district court dismissed

Randell’s § 1983 complaint as frivolous and Randell appealed.                We

affirm the district court on the grounds that Randell’s complaint

fails to state a claim upon which relief may be granted.                FED. R.

CIV. P. 12(b)(6).

                                      II.

     Randell points out, pro se, that he is no longer in custody

and thus can not file a habeas petition.          Randell therefore asserts

that he does not need to prove that the underlying proceedings upon

which his conviction was based have been terminated in his favor,

since he can no longer seek habeas relief.                However, in Heck v.

Humphrey, 512 U.S. 477, 486-87 (1994), the Court unequivocally

stated:

     We hold that, in order to recover damages for allegedly

     2
       See 28 U.S.C. § 2254(a) (stating that “a district court shall entertain
an application for a writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United
States.”).

                                       2
     unconstitutional conviction or imprisonment, or for other
     harm caused by actions whose unlawfulness would render a
     conviction or sentence invalid, [footnote omitted] a §
     1983 plaintiff must prove that the conviction or sentence
     has been reversed on direct appeal, expunged by executive
     order, declared invalid by a state tribunal authorized to
     make such determination, or called into question by a
     federal court’s issuance of a writ of habeas corpus, 28
     U.S.C. § 2254.

Therefore, the Court unequivocally held that unless an authorized

tribunal or executive body has overturned or otherwise invalidated

the plaintiff’s conviction, his claim “is not cognizable under

[section] 1983.”3      Because Randell is seeking damages pursuant to

§ 1983 for unconstitutional imprisonment and has not satisfied the

favorable termination requirement of Heck, he is barred from any

recovery and fails to state a claim upon which relief may be

granted.

     Based on dicta from concurring and dissenting opinions in

Spencer v. Kemna, 523 U.S. 1 (1998), three circuits4 have concluded

that the Supreme Court - if presented with the question - would

relax    Heck’s    universal   favorable    termination     requirement     for

plaintiffs who have no procedural vehicle to challenge their

conviction.       Randell has not shown that such a procedural vehicle

is lacking; he speaks only of inability to obtain habeas relief.

     In the alternative, we decline to announce for the Supreme

Court that it has overruled one of its decisions.



     3
        Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 2372 (1994).
     4
       See Jenkins v. Haubert, 179 F.3d 19, 26 (2d Cir. 1999); Shamaeizadeh v.
Cunigan, 182 F.3d 391, 396 n.3 (6th Cir. 1999); and Carr v. O’Leary, 167 F.3d
1124, 1127 (7th Cir. 1999).

                                       3
     We agree with the First Circuit,5 which stated:

     We are mindful that dicta from concurring and dissenting
     opinions in a recently decided case, Spencer v. Kemna,
     523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), may
     cast doubt upon the universality of Heck’s “favorable
     termination” requirement. See id.at ----, 118 S.Ct. at
     989 (Souter, J., concurring); id. at ----, 118 S.Ct. at
     990 (Ginsberg, J., concurring); id. at n.8, 118 S.Ct. at
     992 n.8 (Stevens, J., dissenting). The Court, however,
     has admonished the lower federal courts to follow its
     directly applicable precedent, even if that precedent
     appears weakened by pronouncements in its subsequent
     decisions, and to leave to the Court “the prerogative of
     overruling its own decisions.” Agostini v. Felton, 521
     U.S. 203, ----, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391
     (1997); see also Rodriguez de Quijas v. Shearson/American
     Express, Inc.,490 U.S. 477, 484, 109 S.Ct. 1917, 104
     L.Ed.2d 526 (1989). We obey this admonition.

Figueroa v. Rivera, 147 F.3d 77, 81 n.3 (1st Cir. 1998).

                                    III.

     For the above reasons, the judgment is AFFIRMED.




     5
       The Ninth Circuit also follows this course.     See Cabrera v. City of
Huntington Park, 159 F.3d 374, 380 n.6 (9th Cir. 1998).

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