                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 14, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-40539
                        Conference Calendar



BILLY RELL MILES,

                                     Plaintiff-Appellant,

versus

JAMES ZELLERS; DOUG DRETKE,

                                     Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 2:04-CV-611
                      --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

     Billy Rell Miles, Texas prisoner # 695744, moves for (1) a

180-day stay of his 42 U.S.C. § 1983 suit pending exhaustion of

his habeas remedies or, in the alternative, (2) equitable tolling

of the limitations period to prevent his civil rights claim from

becoming forever precluded.    Miles’s civil rights suit was

dismissed by the district court pursuant to Heck v. Humphrey,

512 U.S. 477, 486-87 (1994).    Fearing that upon exhaustion of his




     *
       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this opinion should not be published and is not precedent except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. 05-40539
                                -2-

habeas remedies his federal suit will be deemed time-barred, he

seeks the aforementioned relief.

     However, a suit brought pursuant to 42 U.S.C. § 1983 that

challenges the legality of the plaintiff’s conviction, or in

Miles’s case a disciplinary conviction, is not cognizable unless

the conviction has been invalidated.    See Arvie v. Broussard,

42 F.3d 249, 250 (5th Cir. 1994); Clarke v. Stalder, 154 F.3d

186, 189 (5th Cir. 1998) (en banc).    Given that Miles has not

secured the invalidation of his disciplinary conviction on habeas

review, his 42 U.S.C. § 1983 cause of action has not yet accrued,

and, consequently, the statute of limitations has not commenced.

Miles’s motion for a stay or, in the alternative, equitable

tolling is therefore denied.   Furthermore, given that any appeal

would be frivolous, Howard v. King, 707 F.2d 215, 220 (5th Cir.

1983), the appeal is dismissed.    See Baugh v. Taylor, 117 F.3d

197, 202 n.24 (5th Cir. 1997); 5TH CIR. R. 42.2.

     MOTION DENIED; APPEAL DISMISSED.
