                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 21, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-20832
                        Conference Calendar



CORNELIUS WHEELER,

                                    Plaintiff-Appellant,

versus

Captain CHARLES T. SPIVEY, Captain Ellis Unit; ROBERT
D. TUCKER; JANET E. EBNER, Counsel Substitute,

                                    Defendants-Appellees.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. 4:04-CV-3631
                        --------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Cornelius Wheeler, Texas prisoner # 757968, appeals from the

dismissal of his 42 U.S.C. § 1983 suit pursuant to Heck v.

Humphrey, 512 U.S. 477, 489-90 (1994), for failure to state a

claim.   Wheeler also moves for appointment of counsel.     Wheeler

alleges that his disciplinary conviction has been invalidated and

that the application of Heck to prison disciplinary proceedings

is unconstitutional.   We review the district court’s dismissal

de novo.   Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).

     *
       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this opinion should not be published and is not precedent except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. 04-20832
                                 -2-

     Wheeler has not provided evidence in support of his

allegation that his disciplinary conviction has been overturned

or declared invalid, and we have held Heck applicable to prison

disciplinary proceedings.    See Clarke v. Stalder, 154 F.3d 186,

189 (5th Cir. 1998) (en banc).   Wheeler consequently has not

shown erroneous the district court’s dismissal of his complaint

for failure to state a claim.

     Wheeler’s appeal is without arguable merit and is therefore

frivolous.   See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,

219-20 (5th Cir. 1983).    Both the district court’s dismissal and

this court’s dismissal of the instant appeal count as strikes for

purposes of 28 U.S.C. § 1915(g).    See 28 U.S.C. § 1915(e)(2);

Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).    Wheeler

is CAUTIONED that if he accumulates three strikes under

§ 1915(g), he will not be able to 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).

     APPEAL DISMISSED; SANCTION WARNING ISSUED; MOTION FOR
     APPOINTMENT OF COUNSEL DENIED.
