                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                September 23, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-60472
                          Summary Calendar



DONALD E. SMITH,

                                    Plaintiff-Appellant,

versus

ANDREW GAMBRELL; REX K. JONES;
LINDSAY CARTER; DEWITT ALLRED,

                                    Defendants-Appellees.

                        --------------------
            Appeal from the United States District Court
              for the Southern District of Mississippi
                       USDC No. 2:03-CV-612-R
                        --------------------

Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Donald E. Smith, Mississippi prisoner # 31733, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 complaint as

untimely.   This court reviews for abuse of discretion.     Gartrell

v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993).

     Smith’s claims against Andrew Gambrell and Rex Jones arise

from the proceedings leading to and surrounding his indictment,

conviction, and sentence.   His allegations of ineffective

assistance and prosecutorial misconduct call into question the

     *
       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this opinion should not be published and is not precedent except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. 04-60472
                                -2-

validity of his conviction, and Smith therefore must satisfy the

conditions of Heck v. Humphrey, 512 U.S. 477, 484-87 (1994),

before he can proceed in a civil rights action.   Therefore, the

dismissal of Smith’s claims against Gambrell and Jones is

AFFIRMED, but the judgment is AMENDED to state that the claims

are DISMISSED WITH PREJUDICE to their being asserted again until

the Heck conditions are met.   Johnson v. McElveen, 101 F.3d 423,

424 (5th Cir. 1996).   Smith has not challenged the district

court’s conclusion that his claims affecting his eligibility for

immediate release must be raised in habeas, and any such claim is

deemed abandoned.   See Brinkmann v. Dallas County Deputy Sheriff

Abner, 813 F.2d 744, 748 (5th Cir. 1987).

     Smith’s claims against Lindsay Carter and Dewitt Allred

arise out of postconviction proceedings in his case.   Smith has

not established that the district court abused its discretion in

dismissing these claims as untimely.    See Gartrell, 981 F.2d at

256; MISS. CODE ANN. § 15-1-49(1); Hemphill-Weathers v. Farrish,

779 So. 2d 167, 171 (Miss. Ct. App. 2001).   The judgment of the

district court is therefore AFFIRMED.
