     Case: 10-11228     Document: 00511554458         Page: 1     Date Filed: 07/28/2011




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

                                                                            FILED
                                                                            July 28, 2011
                                     No. 10-11228
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MICHAEL ALMENDAREZ,

                                                  Plaintiff-Appellant

v.

PAROLE OFFICER TIMOTHY HUDDLESTON, Parole Region II; UNKNOWN
PAROLE COMMISSIONER, assigned to Region II (or Designee) for Parole
Revocation Hearings; UNKNOWN PAROLE BOARD MEMBER, assigned to
Region II (or Designee) for Parole Revocation Hearings; GENERAL COUNSEL
TO PAROLE DIVISION; ASSISTANT DIRECTOR REBECCA WATTS,
Warrants Section, Parole Division; RISSI OWENS, Presiding Officer of the
Board of Pardons and Paroles Division,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:10-CV-333


Before SMITH, GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
        Michael Almendarez, Texas prisoner # 1601384, appeals the district
court’s dismissal, as barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994),
of his 42 U.S.C. § 1983 suit concerning the issuance and execution of a parole

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-11228    Document: 00511554458      Page: 2   Date Filed: 07/28/2011

                                  No. 10-11228

revocation warrant. He argues that the parole warrant was illegally issued, that
part of his confinement pursuant to the warrant was unlawful, and that his
claims are not barred by Heck. See TEX. GOV’T CODE ANN. § 508.281 (requiring
a revocation hearing to occur before 41 days after arrest).
      Almendarez’s suit is not cognizable under § 1983. See Heck, 512 U.S. at
486-87. “[T]o recover damages for allegedly unconstitutional conviction or
imprisonment, or for harms caused by actions whose unlawfulness would render
a conviction or sentence invalid, a § 1983 plaintiff must prove 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.” Id.
To the extent that Almendarez’s parole was revoked as a result of the warrant,
the holding in Heck is applicable to claims attacking the validity of the parole
proceedings. See McGrew v. Tex. Bd. of Pardons & Paroles, 47 F.3d 158, 161 (5th
Cir. 1995). Regardless, as the district court noted, because Almendarez has been
granted credit toward his sentence for his convictions for indecency with a child
and sexual assault, any ruling by the district court calling into question the
validity of the parole warrant and his incarceration pursuant to the warrant
would necessarily imply the invalidity of his current sentence. See Heck, 512
U.S. at 486-87. Additionally, as for Almendarez’s claim that TEX. GOV’T CODE
ANN. § 508.254 violates the Constitution, where an issue raised on appeal has
not been advanced in the district court, it is not properly before the court of
appeals. Willard v. Ballard, 466 F.3d 330, 335 (5th Cir. 2006).
      Consequently, the district court’s order dismissing Almendarez’s § 1983
suit is AFFIRMED.




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