     Case: 12-41057       Document: 00512258703         Page: 1     Date Filed: 05/31/2013




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

                                                                            FILED
                                                                           May 31, 2013
                                     No. 12-41057
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DOUGLAS ALAN BURDEN,

                                                  Plaintiff-Appellant

v.

UNKNOWN PARTY; STATE OF TEXAS; LOLITA RAMOS; DAVID BARLOW;
LAYNE WALKER; STEVE MCKEITHEN; DON BURGESS; DAVID B.
GUALTNEY; CAROL ANNE FLORES; CHARLES A. KREGER; HOLLIS
HORTON,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:09-CV-819


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Douglas Alan Burden, Texas prisoner # 1160823, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint in which he argues that his
due process rights were violated because he was improperly denied his right to
appeal his Texas aggravated assault conviction. He asserts that the state trial
court misapplied Rule 25.2 of the Texas Rules of Appellate Procedure and erred

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-41057     Document: 00512258703       Page: 2   Date Filed: 05/31/2013

                                   No. 12-41057

in completing the certificate of the right to appeal (CORTA) form and that the
rule was not applicable to the proceeding in which the state trial court
adjudicated his guilt and sentenced him to 35 years of imprisonment. He also
contends that his waiver of the right to appeal was not valid.
      The district court did not err in dismissing Burden’s complaint for failure
to state a claim. See Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir.
2008). Burden had no federal constitutional right to a direct appeal, see Register
v. Thaler, 681 F.3d 623, 628 (5th Cir. 2012), and he did not allege sufficient facts
to show specifically that the state courts deprived him of his right to appeal his
conviction without constitutionally adequate process by applying Rule 25.2 and
the CORTA form or to show that his waiver of the right to appeal was not valid.
See Ridgely v. Fed. Emergency Mgmt. Agency, 512 F.3d 727, 734 (5th Cir. 2008).
Further, to the extent that Burden avers that the state courts misapplied Rule
25.2(a)(2) and made errors when completing the CORTA form, the district court
did not err in dismissing his complaint as he has alleged violations of state law
only. See Jackson v. Cain, 864 F.2d 1235, 1251-52 (5th Cir. 1989).
      The district court’s dismissal of Burden’s complaint for failure to state a
claim counts as a strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996); see also Patton v. Jefferson
Correctional Center, 136 F.3d 458, 463-64 (5th Cir. 1998). Burden has already
accumulated two strikes under § 1915(g). See Burden v. Unidentified Party,
No. 05-40781 (5th Cir. Aug. 7, 2006) (dismissing as frivolous an appeal from the
district court’s dismissal of his § 1983 complaint as frivolous and failing to state
a claim). Burden is advised that he has now accumulated at least three strikes
and that he may not proceed in forma pauperis 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. See § 1915(g).
      AFFIRMED; SANCTION IMPOSED.




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