     Case: 12-51182       Document: 00512326119           Page: 1    Date Filed: 07/30/2013




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

                                                                              FILED
                                                                             July 30, 2013
                                     No. 12-51182
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

RONNY GENE SMITH,

                                                   Plaintiff-Appellant

v.

SCOTT HENRY WILKERSON,

                                                   Defendant-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:12-CV-243


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Ronny Gene Smith, Texas prisoner # 1722493, seeks leave to proceed in
forma pauperis (IFP) to appeal the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint as frivolous and for failure to state a claim. He alleged in his
complaint that the court-appointed attorney who represented him during his
criminal proceedings had violated his constitutional rights by performing
ineffectively. The district court dismissed his complaint after determining that

       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 12-51182     Document: 00512326119      Page: 2   Date Filed: 07/30/2013

                                  No. 12-51182

his claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994), and that he
had failed to show that his court-appointed attorney was a state actor for
purposes of § 1983. The district court denied his motion for leave to proceed
IFP on appeal, certifying that his appeal would not be taken in good faith. See
28 U.S.C. § 1915(a)(3).
      By moving for leave to proceed IFP, Smith is challenging the district
court’s certification that his appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a)(5). A motion for
leave to proceed IFP on appeal “must be directed solely to the trial court’s
reasons for the certification decision.” Baugh, 117 F.3d at 202.
      Smith does not address the district court’s determination that his claims
were barred by Heck. Accordingly, he has abandoned any challenge to that
determination, see Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987), and has failed to demonstrate that his “appeal involves
legal points arguable on their merits.” Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983) (internal quotation marks and citation omitted). Because Smith has
not shown that his appeal involves a nonfrivolous issue, we deny his motion to
proceed IFP on appeal and dismiss his appeal as frivolous. See Baugh, 117
F.3d at 202 & n.24; 5TH CIR. R. 42.2. His motion for the appointment of counsel
is also denied.
      The district court’s dismissal of the complaint as frivolous and this court’s
dismissal of his appeal as frivolous count as two strikes for purposes of 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). We warn Smith that if he accumulates at least three strikes under
§ 1915(g), he may not proceed IFP in any civil action or appeal filed in a court
of the United States while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See § 1915(g).


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   Case: 12-51182   Document: 00512326119   Page: 3   Date Filed: 07/30/2013

                             No. 12-51182

    MOTIONS DENIED; APPEAL DISMISSED; § 1915(g) WARNING
ISSUED.




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