Simmonds v. United States Court of Appeals, Fifth Circuit ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 28, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-30018
Summary Calendar
GORDON RAY SIMMONDS,
Plaintiff-Appellant,
versus
UNITED STATES COURT OF APPEALS, Fifth Circuit,
Defendant-
Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CV-3000
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Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Gordon Ray Simmonds, currently Texas prisoner # 932489, was convicted in federal court
of receiving and distributing child pornography. After his conviction was affirmed, see United States
v. Simmonds, 262 F.3d 468 (5th Cir. 2001), and his motion under 28 U.S.C. § 2255 was denied,
see United States v. Simmonds, No. 03-40895 (5th Cir. Oct. 18, 2004) (unpublished, single-judge
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
order), Simmonds filed the instant complaint in the district court complaining that he wishes to assert
that he received ineffective assistance of counsel in his appeal from his criminal conviction, but that
he is unable to do so because, under 5TH CIR. R. 34.7, he is not entitled to a recording or a transcript
of counsel’s oral argument. Simmonds requested a declaratory judgment that the rule violates his
constitutional rights to counsel and due process and asked the district court to “recommend” to this
court that it provide him with a transcript. We construe the complaint as asserting a civil rights action
under 42 U.S.C. § 1983.
The district court dismissed the complaint with prejudice for failure to state a claim, see 28
U.S.C. § 1915(e)(2)(B)(ii), and denied Simmonds’s request for leave to proceed in forma pauperis
(IFP) on appeal, certifying that the appeal had not been taken in good faith. By applying to this court
for leave to proceed IFP, Simmonds has indicated his intent to challenge the district court’s
certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Simmonds’s ineffective-assistance claim was asserted in his prior § 2255 motion and was
rejected. Although Simmonds contends that it was not fair to reject his ineffective-assistance claim
without providing him with a transcript, that issue should have been asserted in the prior proceeding.
Simmonds has not shown that he will be permitted to assert the issue in a second or successive
motion under § 2255 or in a proceeding under 28 U.S.C. § 2241. See 28 U.S.C. §§ 2244(a) & 2255.
Simmonds has not shown that it is unfairly prejudicial for this court to refuse to provide him with a
transcript of the oral argument. The lack of prejudice is fatal to his due process claim. See Hallmark
v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997). Moreover, because Simmonds’s due process claim
implies the invalidity of this court’s decision in the direct appeal from his criminal conviction, it is not
cognizable in a civil rights action under Heck v. Humphrey, 512 U.S. 477 (1994). See Edwards v.
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Balisok, 520 U.S. 641, 646–48 (1997); Clark v. Stalder, 154 F.3d 186, 189–90 (5th Cir. 1998) (en
banc).
IT IS ORDERED that leave to proceed IFP is DENIED and the appeal is DISMISSED AS
FRIVOLOUS. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2. The district court’s judgment
dismissing the complaint pursuant to § 1915(e)(2)(B)(ii) and this court’s dismissal both count as
strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th
Cir. 1996). Simmonds has two prior strikes. See Simmonds v. Cockrell, 81 F. App’x 488, 489 (5th
Cir. 2003); Simmonds v. Abbott, No. 4:04-CV-00526 (S.D. Tex. Apr. 7, 2004). Simmmonds is now
BARRED under § 1915(g) from bringing a civil action or an appeal from a judgment in a civil action
or proceeding under § 1915 unless he is under imminent danger of serious physical injury.
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