Miller v. Hawkins

PER CURIAM. * Lee Nichols Miller, Texas prisoner # 688520, appeals from the dismissal of his 42 U.S.C. § 1983 complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). Miller, who was convicted of murder in 1994, filed suit against numerous individuals involved in his trial and his state post-conviction proceedings. Miller argues that his claims are not barred by limitations, as the district court held, and he also briefs the merits of his claims that 1) the trial court erroneously failed to suppress an illegally seized letter; 2) due process was violated because the trial judge went on vacation while the jury deliberated and two different judges presided; 3) evidence of extraneous bad acts was improperly admitted; 4) his punishment was excessive; 5) his sentence is void because it is based on a null section of the penal code; 6) the district attorney acted improperly during his state habeas proceedings; and 7) defense counsel failed to move for a new trial and failed to raise various issues on appeal. Miller has not shown error in the district court’s holding that Miller’s claims are barred by Heck v. Humphrey, 512 U.S. *57 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Miller has not addressed the district court’s conclusions that the district attorney is entitled to absolute immunity, and that defense counsel is not a state actor subject to suit under 42 U.S.C. § 1983. Accordingly, Miller has abandoned those issues on appeal. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.1987). Miller’s appeal is without arguable merit and is dismissed as frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir.1983); 5th Cir. R. 42.2. The district court’s dismissal of the complaint and this court’s dismissal of the appeal count as two strikes against Miller for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.1996). Before the instant notice of appeal was filed, Miller received two strikes in Miller v. Price, No. 9:01-CV-0290 (E.D.Tex. Oct. 21, 2002), and Miller v. Keller, No. 4:02-CV-1413 (S.D.Tex. April 23, 2002). After the notice of appeal was filed in this case, Miller received another strike in Miller v. Medical Staff, No. 02-10876, 61 Fed.Appx. 917, 2003 WL 1103544 (5th Cir. Feb. 13, 2003) (unpublished); see also Miller v. 299 Defendants, No. 03-10136, 2003 WL 21999462 (5th Cir. 2003). Miller is cautioned that he has now accumulated more than three strikes under 28 U.S.C. § 1915(g), and 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) BAN IMPOSED. Motions to file supplemental brief GRANTED. Footnotes [*] 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.