     Case: 14-50135      Document: 00512762625         Page: 1    Date Filed: 09/09/2014




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

                                      No. 14-50135                             FILED
                                                                        September 9, 2014
                                                                          Lyle W. Cayce
JAMES WALTER LEGATE,                                                           Clerk

                                                 Plaintiff-Appellant

v.

JAMES D. GARCIA, Sr. Trace Analyst; TIMOTHY C. FALLON, Director,
Bexar County Forensic Science Center Criminal Investigation Lab,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CV-841


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       James Walter Legate, Texas prisoner # 888549, moves for leave to
proceed in forma pauperis (IFP) on appeal of the dismissal of his 42 U.S.C.
§ 1983 complaint. The district court dismissed Legate’s complaint as barred
by the applicable statute of limitations. The district court certified that the
appeal had not been taken in good faith and denied Legate permission to
proceed IFP on appeal.         Legate argues that he did not discover the facts


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-50135     Document: 00512762625    Page: 2   Date Filed: 09/09/2014


                                 No. 14-50135

underlying his claim until he obtained a copy of the gunshot residue test report
in April 2012.
      By moving to proceed IFP, Legate is challenging the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant’s good faith
“is limited to whether the 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 and citation omitted). We may dismiss the
appeal if it is frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
      The dismissal of Legate’s complaint based on expiration of the two-year
statute of limitations was erroneous because, under the doctrine of Heck v.
Humphrey, 512 U.S. 477 (1994), Legate’s § 1983 cause of action has yet to
“accrue.” See Castellano v. Fragozo, 352 F.3d 939, 959 (5th Cir. 2003); Wells v.
Bonner, 45 F.3d 90, 94 (5th Cir. 1995). Nevertheless, any claim that Legate
was wrongly convicted based on due process violations at trial would
necessarily imply that his conviction is invalid. See Heck v. Humphrey, 512
U.S. 477, 486-87 (1994); see also Stephenson v. Reno, 28 F.3d 26, 27-28 (5th Cir.
1994). Legate has not shown that his conviction has been invalidated by
official action.   Therefore, his claims are barred by Heck and are not yet
cognizable in a § 1983 action.       See Heck, 512 U.S. at 486-87; Cronn v.
Buffington, 150 F.3d 538, 541 & n.2 (5th Cir. 1998). We may affirm the district
court’s dismissal on any basis supported by the record. See Hosein v. Gonzales,
452 F.3d 401, 403 (5th Cir. 2006).
      In view of the foregoing, Legate has not shown that he will present a
nonfrivolous issue for appeal. See Howard, 707 F.2d at 219-20. Accordingly,
his motion to proceed IFP on appeal is denied, and his appeal is dismissed as
frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.



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                                  No. 14-50135

      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). Legate is advised that if he accumulates three strikes, 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 he is under imminent danger of serious
physical injury. See § 1915(g).
      IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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