     Case: 12-60711       Document: 00512190644         Page: 1     Date Filed: 03/28/2013




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

                                                                            FILED
                                                                          March 28, 2013
                                     No. 12-60711
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ULYSSES BOWNES,

                                                  Plaintiff-Appellant

v.

JIM HOOD, Mississippi Attorney General; RALPH DOXEY, Former Assistant
District Attorney; RAYMOND BYRD, Warden, C.C.A. Wilkinson County
Correctional Facility; EMMITT L. SPARKMAN, Deputy Commissioner of
Corrections; CHRISTOPHER B. EPPS, Commissioner of Corrections; PHIL
BRYANT, Governor of Mississippi; ERIC H. HOLDER, JR., U. S. Attorney
General,


                                                  Defendants-Appellees


                   Appeals from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 3:12-CV-399


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Ulysses Bownes, Mississippi prisoner # L0115, appeals the dismissal of his
in forma pauperis (IFP), pro se complaint, which raised claims pursuant to
42 U.S.C. § 1983 and 28 U.S.C. § 2254. The district court dismissed Bownes’s

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-60711       Document: 00512190644    Page: 2    Date Filed: 03/28/2013

                                  No. 12-60711

§ 1983 claim as frivolous and for failure to state a claim and imposed a 28 U.S.C.
§ 1915(g) strike for the dismissal. The district court dismissed Bownes’s § 2254
claim without prejudice. See Serio v. Members of La. St. Bd. of Pardons, 821
F.2d 1112, 1119 (5th Cir. 1987); Preiser v. Rodriguez, 411 U.S. 475, 494, 499-500
(1973).
      As an initial matter, Bownes’s motions to file supplemental authorities are
granted. His motion for appointment of counsel is denied.
      Although the district court did not rule upon whether a certificate of
appealability was warranted, see 28 U.S.C. § 2253(c)(1)(A), we will not reach this
jurisdictional issue due to the frivolous nature of Bownes’s appeal. Cf. United
States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000). Bownes has abandoned by
failing to challenge the district court’s dismissal of his § 1983 claims and the
denial of habeas relief. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
      Bownes’s appeal is without arguable merit and thus is frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is
frivolous, it is dismissed. See 5TH CIR. R. 42.2. The dismissal of this appeal as
frivolous counts as a strike under § 1915(g), as does the district court’s dismissal
of the complaint. See § 1915(g); Patton v. Jefferson Correctional Center, 136 F.3d
458, 463-64 (5th Cir. 1998); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Bownes is warned that if he accumulates three strikes, he may not
proceed IFP 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).
      MOTION TO FILE SUPPLEMENTAL AUTHORITIES GRANTED;
MOTION      FOR      APPOINTMENT         OF   COUNSEL        DENIED;      APPEAL
DISMISSED; SANCTION WARNING ISSUED.




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