                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                             No. 01-10216
                         Conference Calendar



OLIVER J. LEWIS,

                                          Plaintiff-Appellant,

versus

STATE OF TEXAS,

                                          Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 4:00-CV-1859-A
                       --------------------
                          August 21, 2001

Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.

PER CURIAM:*

     Oliver J. Lewis (Lewis), Texas prisoner #715638, appeals the

district court’s dismissal of his pro se civil rights action

under 42 U.S.C. § 1983 for lack of jurisdiction.

     This court must examine the basis of its jurisdiction on its

own motion if necessary.    Mosley v. Cozby, 813 F.2d 659, 660 (5th

Cir. 1987).    Lewis’s “Appeal to Vacate” was executed on January

29, 2001, within 10 days of the district court’s January 17,

2001, order of dismissal.   This motion is treated as one under

Fed. R. Civ. P. 59.    See Mangieri v. Clifton, 29 F.3d 1012, 1015

     *
        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that this opinion should not be published and is not precedent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. 01-10216
                                 -2-

n.5 (5th Cir. 1994); Harcon Barge Co. v. D & G Boat Rentals,

Inc., 784 F.2d 665, 667 (5th Cir. 1986) (en banc).     Lewis filed a

motion supplementing his Rule 59 motion.    The district court

denied this motion.    Within 30 days of the district court’s

denial of his supplemental motion, Lewis filed a motion for leave

to proceed in forma pauperis (IFP) on appeal.    See Fed. R. App.

P. 4(a)(1)(A).    Lewis’s motion to proceed IFP on appeal is

treated as a timely notice of appeal as it evinced his intent to

appeal.    See Robbins v. Maggio, 750 F.2d 405, 408-09 (5th Cir.

1985); see also Fed. R. App. P. 4(a)(4)(B)(i).     Accordingly, we

have jurisdiction to consider Lewis’s appeal from the district

court’s dismissal of his 42 U.S.C. § 1983 complaint.     See

Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d 285, 289 (5th

Cir. 1989).

     Lewis concedes that his complaint did not allege a violation

of his constitutional rights.    Lewis nevertheless argues that the

district court erred because it did not allow him an opportunity

to amend his pleadings and because it did not consider his pro se

status.    The district court correctly construed Lewis’s complaint

as a petition for a writ of mandamus ordering the Tarrant County

district attorney or custodian or records to produce DNA test

results.    Federal courts have no authority to issue writs of

mandamus to direct state courts or their judicial officers in the

performance of their duties.    See Moye v. Clerk, DeKalb County

Superior Court, 474 F.2d 1275, 1276 (5th Cir. 1973) (citations

omitted).    To the extent Lewis sought damages for the State’s

alleged due process violation in not turning over DNA test
                            No. 01-10216
                                 -3-

results, this claim is barred by Heck v. Humphrey.    512 U.S. 477,

486-87 (1994).    As Lewis has failed to brief his ineffective

assistance of counsel claim, this claim has been abandoned on

appeal.    See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.

1993).

     Lewis’s appeal is without merit and is therefore frivolous.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

Because the appeal is frivolous, it is DISMISSED.    See 5th Cir.

R. 42.2.   The district court’s dismissal of this case and this

court’s dismissal of his appeal as frivolous count as two strikes

for purposes of 28 U.S.C. § 1915(g).    Adepegba v. Hammons, 103

F.3d 383, 388 (5th Cir. 1996).    We caution Lewis that once he

accumulates three strikes, he may not proceed IFP in any civil

action or appeal while he is incarcerated or detained in any

facility unless he is under imminent danger of serious physical

injury.

     DISMISSED AS FRIVOLOUS; WARNING ISSUED.
