                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                             FILED
               IN THE UNITED STATES COURT OF APPEALS        June 22, 2004
                       FOR THE FIFTH CIRCUIT
                                                       Charles R. Fulbruge III
                                                               Clerk

                            No. 03-30832
                        Conference Calendar



ELSTON ROBERTSON,

                                    Plaintiff-Appellant,

versus

FRANK BRINDISI,

                                    Defendant-Appellee.


                       --------------------

           Appeal from the United States District Court
               for the Eastern District of Louisiana
                       USDC No. 01-CV-1819-L

                       --------------------

Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Elston Robertson, Louisiana prisoner # 104013, appeals

the dismissal of his 42 U.S.C. § 1983 complaint as frivolous and

for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2).

The district court held that Robertson’s § 1983 claim was barred

by both prosecutorial immunity and Heck v. Humphrey, 512 U.S. 477

(1994).   Robertson has failed to brief the district court’s Heck

determination, and, therefore, that issue is waived and

     *
       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this opinion should not be published and is not precedent except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. 03-30832
                                 -2-

unreviewable.    See Yohey v. Collins, 985 F.2d 222, 224-25

(5th Cir. 1993).   He consequently cannot show the district

court’s resolution of his claims to be erroneous.

     Robertson’s appeal therefore lacks arguable merit and is

dismissed as frivolous.    See 5TH CIR. R. 42.2; Howard v. King,

707 F.2d 215, 219-20 (5th Cir. 1983).      Robertson is warned that

the dismissal of this appeal as frivolous counts as a strike

for purposes of 28 U.S.C. § 1915(g), in addition to the strike

for the district court’s dismissal.     See Patton v. Jefferson

Corr. Ctr., 136 F.3d 458, 463-64 (5th Cir. 1998).     We warn

Robertson that once he accumulates three strikes, he may not

proceed in forma pauperis in any civil action or appeal filed

while he is incarcerated or detained in any facility unless he is

under imminent danger of serious physical injury.      See 28 U.S.C.

§ 1915(g).

     The district court construed Robertson’s challenge to his

confinement as a request for 28 U.S.C. § 2254 relief, and his

notice of appeal was construed by this court as an appellate

request for a certificate of appealability (COA) to appeal the

dismissal of his habeas claims for failure to exhaust state court

remedies.    See Robertson v. Brindisi, No. 03-30832 (5th Cir.

Mar. 10, 2004) (unpublished).    Robertson, however, has not shown

“that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable
                          No. 03-30832
                               -3-

whether the district court was correct in its procedural ruling.”

See Slack v. McDaniel, 529 U.S. 473, 484 (2000).   His COA request

is therefore DENIED.

     APPEAL DISMISSED; STRIKE WARNING ISSUED; COA DENIED.
