          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                               December 22, 2008
                                No. 08-50672
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

MICHAEL BOONE

                                            Plaintiff-Appellant

v.

UNITED STATES OF AMERICA

                                            Defendant-Appellee


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 5:08-CV-399


Before REAVLEY, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
      Michael Boone, Texas prisoner # 915679, appeals the dismissal of his 42
U.S.C. § 1983 complaint as frivolous and for failure to state a claim upon which
relief may be granted. Boone filed his § 1983 complaint following the dismissal
of his 28 U.S.C. § 2254 application as time-barred. Boone argues that the time
limitations period set forth in 28 U.S.C. § 2244(d) is unconstitutional because it
prevents him from petitioning the Government for a redress of grievances.



      *
      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should not be published and is not precedent except under the limited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. 08-50672

      We review a dismissal as frivolous under 28 U.S.C. § 1915A for abuse of
discretion. Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998). A dismissal for
failure to state a claim under § 1915A is reviewed under the same de novo
standard as dismissals under FED. R. CIV. P. 12(b)(6). Bazrowx v. Scott, 136 F.3d
1053, 1054 (5th Cir. 1998). Because the district court found that Boone’s
complaint was both frivolous and failed to state a claim, review is de novo. See
Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
      Despite Boone’s argument to the contrary, he is making a Suspension
Clause argument. Boone’s argument is unavailing. The limitations period found
in § 2244(d) does not unconstitutionally suspend the writ.        See Turner v.
Johnson, 177 F.3d 390, 392-93 (5th Cir. 1999); Molo v. Johnson, 207 F.3d 773,
775 (5th Cir. 2000). Accordingly, the judgment of the district court is affirmed.
Our affirmance of the district court’s dismissal counts as one strike for purposes
of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.
1996). Boone is cautioned that if he accumulates three strikes, he will no longer
be allowed to proceed in forma pauperis in any civil action or appeal filed while
he is detained or incarcerated in any facility unless he is in imminent danger of
serious physical injury. See § 1915(g).
      AFFIRMED; SANCTION WARNING ISSUED.




                                          2
