King v. One United States Government , 72 F. App'x 198 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS August 20, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-20267
Conference Calendar
JAMES H. KING,
Plaintiff-Appellant,
versus
ONE UNITED STATES GOVERNMENT,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-03-CV-474
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Before JONES, WIENER, and BENAVIDES, Circuit Judges
PER CURIAM:*
James H. King, Texas prisoner # 800742, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 action for failure to
state a claim, under 28 U.S.C. § 1915(e)(2)(B)(ii).
King argues that 28 U.S.C. § 2244(d)’s limitations period
violates the Suspension Clause. This argument is foreclosed by
circuit precedent. Section § 2244(d)’s statute of limitations
merely alters the procedure for bringing a habeas petition and
does not unconstitutionally suspend the writ. Molo v. Johnson,
207 F.3d 773, 775 (5th Cir. 2000); Turner v. Johnson, 177 F.3d
*
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that this opinion should not be published and is not precedent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. 03-20267
-2-
390, 392 (5th Cir. 1999). King does not raise or brief his
equal-protection or comity arguments, and these are deemed
abandoned. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987).
King’s appeal is frivolous and is DISMISSED. 5TH CIR.
R. 42.2. The dismissal of this appeal as frivolous and the
district court’s dismissal for failure to state a claim count as
two “strikes” for purposes of 28 U.S.C. § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). King is CAUTIONED
that if he accumulates three “strikes” under 28 U.S.C. § 1915(g),
he will not be able to 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; THREE-STRIKES WARNING ISSUED.