     Case: 15-40346      Document: 00513479442         Page: 1    Date Filed: 04/25/2016




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

                                                                               FILED
                                                                            April 25, 2016
                                      No. 15-40346
                                                                            Lyle W. Cayce
                                                                                 Clerk
TOMMY R. HARRIS,

                                                 Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; BOARD OF
PARDONS AND PAROLES; THE STATE OF TEXAS,

                                                 Respondents-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:15-CV-14


Before JOLLY, DENNIS and PRADO, Circuit Judges.
PER CURIAM: *
       In November 2014, Tommy R. Harris filed in the district court a 28
U.S.C. § 2254 petition challenging the decision by the Texas Board of Pardons
and Paroles denying his release to mandatory supervision and his continued
detention by the Texas Department of Criminal Justice, Correctional
Institutions Division. During the pendency of the § 2254 proceedings, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                         No. 15-40346

while he was still in custody, 1 Harris filed a complaint pursuant to 42 U.S.C. §
1983 seeking monetary damages and injunctive and declaratory relief
stemming from his continued detention and the denial of his release to
mandatory supervision. The district court dismissed the complaint on the
grounds that Harris’s claims were duplicative of the claims raised in a pending
§ 2254 proceeding. The district court also denied Harris’s motion to proceed in
forma pauperis (IFP) on appeal, certifying under 28 U.S.C. § 1915(a)(3), that
an appeal was meritless and not taken in good faith.
      Harris now moves this court for leave to proceed IFP. He also moves for
a certificate of appealability (COA) and for the appointment of counsel.
      As an initial matter, a COA is unnecessary in this case. Harris’s case is
before us as a challenge to the district court’s certification decision. Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997) (recognizing the applicability of
§ 1915(a)(3) to suits brought by “prisoners and nonprisoners alike”). When a
district court denies IFP status and certifies that an appeal is not taken in good
faith, the appellant must either pay the filing fee or challenge the district
court’s certification decision. Id.; FED. R. APP. P. 24(a)(3)(A). Thus, our inquiry
“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) (citation and internal quotation marks omitted).
      To recover damages under § 1983 for his “allegedly unconstitutional . . .
imprisonment,” Harris must prove that the challenged sentence has been
“reversed on direct appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such determination, or called into question
by a federal court’s issuance of a writ of habeas corpus.” Heck v. Humphrey,
512 U.S. 477, 486-87 (1994); see McGrew v. Tex. Bd. of Pardons & Paroles, 47


      1   During the pendency of this appeal, Harris notified this court of his release on parole.


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                               No. 15-40346

F.3d 158, 160-61 (5th Cir.1995). He has not made that showing; until he can,
his claims seeking damages under § 1983 are not cognizable. See Heck, 512
U.S. at 487, 114 S. Ct. 2364; McGrew, 47 F.3d at 160-61. Harris’s appeal is
therefore without arguable merit. See Howard, 707 F.2d at 220.
     Accordingly, a COA is DENIED AS UNNECESSARY.                As this case
presents no “exceptional circumstances,” Harris’s motion for the appointment
of counsel is DENIED. Harris’s IFP motion is DENIED, and the appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.




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