* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

August 16, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-41740

Conference Calendar

 

RICKIE DUFRENE,

Plaintiff-Appellant,

versus

BRAZORIA COUNTY DISTRICT ATTORNEY OFFICE; 

BRAZORIA COUNTY SHERIFF’S DEPARTMENT; JOHN DOE, 

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:04-CV-45

--------------------

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Rickie Dufrene, Texas inmate # 603712, appeals from the

dismissal of his 42 U.S.C. § 1983 suit pursuant to Heck v.

Humphrey, 512 U.S. 477 (1994), for failure to state a claim. 

Dufrene’s claim was based on the alleged premature destruction of

evidence of his crime, which prevents Dufrene from availing

himself of the opportunity for DNA testing provided by Texas law. 

We review the district court’s dismissal de novo, applying the
No. 04-41740

-2-

same standard used for FED. R. CIV. P. 12(b)(6) dismissals. See

Hart v. Hairston, 343 F.3d 762, 763-64 (5th Cir. 2003). 

Dufrene argues that the district court misconstrued his

complaint as an attack on the validity of his conviction. 

Notwithstanding Dufrene’s contentions, were the district court to 

award Dufrene damages on his claim regarding the destruction of

evidence and the loss of the opportunity for DNA testing, the

validity of his conviction would be implicitly questioned. Under

Heck, Dufrene’s claim is not actionable because he has not shown

that his conviction has been reversed on direct appeal, expunged

by executive order, invalidated by other state means, or called

into question by the issuance of a federal habeas writ. See

Heck, 512 U.S. at 486. 

Dufrene also argues that the Antiterrorism and Effective

Death Penalty Act (“AEDPA”) is unconstitutional in various

respects. The AEDPA’s time-bar and successive-petition

provisions do not preclude Dufrene from achieving a favorable

termination, as required by Heck. See id. The AEDPA’s

provisions do not restrict Dufrene’s ability to file necessary

legal documents, and thus do not deny Dufrene his right of access

to the courts. See Brewer v. Wilkinson, 3 F.3d 816, 820-21 (5th

Cir. 1993). Nor do the AEDPA’s provisions violate the principle

of separation of powers, see Plaut v. Spendthrift Farm, Inc., 514

U.S. 211, 218-19 (1995), or violate the Suspension Clause. See

Felker v. Turpin, 518 U.S. 651, 664 (1996).
No. 04-41740

-3-

Dufrene’s appeal is without arguable merit and is therefore

dismissed as frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707

F.2d 215, 219-20 (5th Cir. 1983). Both the district court’s

dismissal and this court’s dismissal of the instant appeal count

as strikes for purposes of 28 U.S.C. § 1915(g). See 28 U.S.C. 

§ 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.

1996). Dufrene is cautioned that if he accumulates three strikes

under § 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 AS FRIVOLOUS; SANCTION WARNING ISSUED.