                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 19, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 03-20329
                        Conference Calendar



JULIUS DANIEL JOSEPH,

                                    Plaintiff-Appellant,

versus

GARY JOHNSON; JOHNNY B. HOLMES;
JAMES PATTON,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-02-CV-4844
                      --------------------

Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Julius Daniel Joseph, Texas prisoner # 617774, appeals the

district court’s dismissal with prejudice of his 42 U.S.C. § 1983

complaint as time-barred and therefore frivolous, and for failure

to state a claim for relief under 28 U.S.C. § 1915(e)(2).       The

district court also determined that Joseph’s complaint was barred

by Heck v. Humphrey, 512 U.S. 477 (1994).




     *
        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that this opinion should not be published and is not precedent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. 03-20329
                                  -2-

     The district court did not err in concluding that Joseph’s

claims are barred by Heck.    Joseph has failed to show that his

sentence on a 1991 conviction 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.     See Heck,

512 U.S. at 486-87.

      Joseph has previously filed a 42 U.S.C. § 1983 complaint

which the district court dismissed with prejudice as time-barred

and as frivolous under 28 U.S.C. § 1915(e)(2).   The district

court’s dismissal counts as one strike for purposes of 28 U.S.C.

§ 1915(g).   Because Joseph’s claims in the instant complaint lack

legal merit, his appeal is dismissed as frivolous.    See Howard v.

King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R. 42.2.   The

district court’s dismissal of the present case and our dismissal

of this appeal count as two strikes against Joseph for purposes

of 28 U.S.C. § 1915(g).   See Adepegba v. Hammons, 103 F.3d 383,

388 (5th Cir. 1996).   Joseph has accrued three strikes,

therefore, 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 28 U.S.C. § 1915(g).

     APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED
