     Case: 16-40740      Document: 00514055121         Page: 1    Date Filed: 06/29/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                      No. 16-40740                               FILED
                                                                             June 29, 2017

AARON EARL CARTER, JR.,                                                     Lyle W. Cayce
                                                                                 Clerk
                                                 Plaintiff-Appellant

v.

WARDEN J.W. MOSSBARGER,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:14-CV-326


Before OWEN, ELROD, and COSTA, Circuit Judges.
PER CURIAM: *
       Aaron Earl Carter, Jr., Texas prisoner # 01065189, has moved for leave
to proceed in forma pauperis (IFP) to appeal from the district court’s dismissal
of his 42 U.S.C. § 1983 complaint. The district court denied Carter’s motion to
proceed IFP and certified pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule
of Appellate Procedure 24(a)(3)(A) that the appeal was not taken in good faith.
We pretermit any question as to whether Carter filed a timely appeal because



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40740

this appeal is frivolous. See United States v. Alvarez, 210 F.3d 309, 310 (5th
Cir. 2000).
      By moving to proceed IFP in this court, Carter is challenging the district
court’s certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997). In evaluating whether the appeal is taken in good faith, the relevant
inquiry is “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).
      Carter argues that the trial court previously declared his 2001 conviction
for aggravated robbery, and the 30-year sentence imposed in connection with
that conviction, invalid by granting his motion for a new trial. He argues that
he is not being held pursuant to a valid and operative judgment and that the
grant of his motion for a new trial negated the need for, and validity of, all later
proceedings. Carter seeks release from prison and a new trial; Carter asks for
injunctive relief to end his imprisonment for an allegedly vacated judgment.
To the extent that Carter asserts claims that implicate the validity of the state
habeas proceedings and argues the merits of his motion for a new trial, we need
not consider those claims because he raises them for the first time on appeal.
See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
      Because Carter seeks to contest the fact and duration of his confinement,
his claims are not cognizable under § 1983; rather, his claims are proper for a
federal habeas proceeding. See Wilkinson v. Dotson, 544 U.S. 74, 78-79, 81-82
(2005); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Also, because Carter
maintains that he is incarcerated pursuant to an invalid judgment, his claims
imply the invalidity of his conviction and sentence. Despite his claim that his
conviction and sentence were vacated, Carter presently is in custody pursuant
to a judgment of a Texas state court, and all of his prior state court challenges



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                                 No. 16-40740

to his conviction and sentence were denied. Because Carter has not identified
an operative ruling that reversed his conviction and sentence, his claims are
also barred by Heck v. Humphrey, 512 U.S. 477, 468-87 (1994).
      Because Carter has not shown that he will present a nonfrivolous issue
for appeal, his motion to proceed IFP is denied, and the appeal is dismissed as
frivolous. See Baugh, 117 F.3d at 202 n.24; Howard, 707 F.2d at 220; 5TH CIR.
R. 42.2. The dismissal of the complaint by the district court and the dismissal
of this appeal both count as strikes under 28 U.S.C. § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Carter is warned that, if he
accumulates three strikes, he will not be able to proceed IFP 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).
      IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.




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