                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                February 23, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                              No. 04-60892
                          Conference Calendar



GARY LEE,

                                      Plaintiff-Appellant,

versus

E.L. SPARKMAN, Warden at Marshall County Correctional Facility;
A.W. HELMIC, Deputy Warden, School Programs; W.M. WILLIAMS,
Assistant Warden; LANCE BUTLER, Attorney, Inmate Lawyer; GWEN
SHAW, Legal Claim Adjudicator,

                                      Defendants-Appellees.

                        --------------------
            Appeal from the United States District Court
              for the Northern District of Mississippi
                       USDC No. 3:00-CV-107-P
                        --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Gary Lee, Mississippi prisoner # 39820, has filed a motion

for leave to proceed in forma pauperis (IFP) in this appeal of

the district court’s denial of his FED. R. CIV. P. 60(b) motion

for relief from the district court’s judgment denying his 42

U.S.C. § 1983 action.    The district court denied Lee leave to

proceed IFP on appeal, certifying that the appeal was not taken

in good faith.    By moving for leave to proceed IFP, Lee is

     *
       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this opinion should not be published and is not precedent except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. 04-60892
                                 -2-

challenging the district court’s certification.     See Baugh v.

Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P.

24(a)(5).

     Lee argues that he has newly discovered evidence showing

that the defendants failed to provide him with a copy of the

Antiterrorism and Effective Death Penalty Act and thereby denied

his right of access to the courts.    Lee has not shown that this

evidence could not have been discovered through due diligence

prior to the district court’s initial judgment denying his 42

U.S.C. § 1983 action.    Lee has not shown that the district

court’s denial of his Rule 60(b) motion was an abuse of

discretion.    See Carimi v. Royal Carribean Cruise Line, Inc., 959

F.2d 1344, 1345 (5th Cir. 1992).

     Lee has failed to show that his appeal involves “‘legal

points arguable on their merits (and therefore not frivolous).’”

Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal

quotation marks omitted).    Accordingly, the motion for leave to

proceed IFP on appeal is denied and the appeal is dismissed as

frivolous.    See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.

Lee is cautioned that the dismissal of this appeal as frivolous

counts as a strike under 28 U.S.C. § 1915(g).     See Adepegba v.

Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).    Lee is warned

that if he accumulates three strikes under 28 U.S.C. § 1915(g),

he will not be able to proceed IFP in any civil action or appeal

filed while he is incarcerated or detained in any facility unless
                            No. 04-60892
                                 -3-

he is under imminent danger of serious physical injury.   See 28

U.S.C. § 1915(g); see FED. R. APP. P. 38; Clark v. Green, 814 F.2d

221, 223 (5th Cir. 1987).

     IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING

ISSUED.
