     Case: 16-20412      Document: 00514111083         Page: 1    Date Filed: 08/10/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 16-20412                                FILED
                                  Summary Calendar                        August 10, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
CHARLES WOMBA HOLMES,

                                                 Plaintiff-Appellant

v.

JOHN POLLOCK,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-1622


Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
       Charles Womba Holmes, Texas prisoner # 01724919, filed a 42 U.S.C.
§ 1983 complaint arguing that the defendant violated various constitutional
rights by improperly recording a phone conversation between him and the
minor victim without first obtaining a warrant, court order, or parental
consent. Holmes was convicted of sexual assault of a child.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-20412    Document: 00514111083     Page: 2   Date Filed: 08/10/2017


                                 No. 16-20412

      The district court dismissed the complaint for failure to state a claim
pursuant to 28 U.S.C. § 1915A(b)(1) because Holmes’s claims were barred by
Heck v. Humphrey, 512 U.S. 477 (1994). Holmes appeals the district court’s
dismissal of his complaint.    We review a dismissal of a complaint under
§ 1915A(b)(1) de novo. Green v. Atkinson, 623 F.3d 278, 280 (5th Cir. 2010).
      A plaintiff in a § 1983 action may not recover damages for “allegedly
unconstitutional conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or sentence invalid,”
unless he “prove[s] that the conviction or 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, 512 U.S. at 486-87. Holmes
contends that his claims are not barred by Heck because his complaint does not
call into question his conviction for sexual assault of a child. He argues that
any error in the admission of the recording was harmless because there was
other evidence to support his conviction. We disagree.
      On direct appeal, Holmes argued that the evidence was insufficient
because of inconsistencies in the victim’s testimony and because the testimony
of the victim and her mother conflicted with that of Holmes and two witnesses
who testified that the victim and her mother had fabricated their testimony.
Further, the jury deliberated for nine hours before reaching a verdict. If the
district court were to grant Holmes relief as to his claims, it would implicitly
call into question the validity of his conviction. See Heck, 512 U.S. at 487.
Given that Holmes’s § 1983 claims are barred by Heck, any error by the district
court in dismissing the complaint without giving Holmes an opportunity to
amend was harmless. See Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.
1998).



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    Case: 16-20412     Document: 00514111083     Page: 3   Date Filed: 08/10/2017


                                  No. 16-20412

      The district court’s dismissal of Holmes’s complaint for failure to state a
claim counts as a strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Holmes is warned that if he
accumulates three strikes, he may not 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 § 1915(g).
      AFFIRMED; SANCTION WARNING ISSUED.




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