* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 13 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROY DALE BANKS, Plaintiff-Appellant,

v. (FNU) MCFARLAND; (FNU) SIX; (FNU) ALLEGRUCCI; (FNU) FROMME; (FNU) LOCKETT; (FNU) MILLER; JOHN DOE, Kansas Supreme Court Justices, Defendants-Appellees. No. 01-3052 (District of Kansas) (D.C. No. 01-CV-3021-GTV)

ORDER AND JUDGMENT *

BeforeHENRY , BRISCOE, and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Roy Dale Banks, an inmate proceeding pro se and in forma pauperis , appeals the district court’s dismissal of his 42 U. S.C. § 1983 civil rights complaint. In his complaint, Banks named as defend ants various justices of the Kansas Supreme Court who had participated in handin g down the following three decisions: State v Colbert, 769 P.2d 1168 (Kan. 1989); State v. Davis , 605 P.2d 572 (Kan. 1980); and State v. Robertson , 592 P.2d 460 (1979). Banks alleged that these judicial decisions imposed an unconstitutiona l subjective standard for evaluating the dangerous-weapon element of aggravat ed robbery. He sought a declaratory judgment that this test violated clearly established constitutional rights and an injunction to prevent further usage o f the subjective standard to the offense of aggravated robbery. The district court dismissed Banks’ complaint as fr ivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). To the extent that Banks’ complaint stated a freestanding challenge to the decisions listed above, none of wh ich involved Banks, the district court noted that it lacked Article III jurisdictionto consider the complaint. On the other hand, to the extent that Banks was instea d contending that the application of these decisions caused him to be unc onstitutionally convicted of aggravated robbery, the district court noted that B anks’ remedy lies in a petition-3-

for writ of habeas corpus filed under 28 U.S.C. § 2 254. See Preiser v. Rodriquez , 411 U.S. 475, 489 (1973) (holding that § 2254 habea s corpus petition is the exclusive remedy where a state prisoner challenges the fact or duration of his confinement). On appeal, Banks merely reasserts the same argument s he advanced in the district court. It is absolutely clear, however, that Banks lacks standing to lodge a generalized challenge to the defendants’ applicatio n of a subjective standard to the dangerous-weapon element of aggravated robbery. See Schaffer v. Clinton , 240 F.3d 878, 882 (10th Cir. 2001) (setting forth e lements of standing). Banks does allege in his appellate brief that the “‘subje ctive test’ had a direct infringement to plaintiff’s aggravated robbery conv iction.” This assertion of injury in fact merely serves to demonstrate the dis trict court’s conclusion that Banks’ sole remedy lies in a § 2254 habeas corpus p etition. See Preiser , 411 U.S. at 489. In light of the district court’s clear explanation of the controlling law in its order of dismissal, this court concludes that Banks ’ appeal is frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i). Both the district court ’s dismissal of the complaint and this court’s dismissal of the appeal count as s trikes under § 1915(g). See Jennings v. Natrona County Det. Ctr. , 175 F.3d 775, 780 (1999). Banks is hereby warned that if he accrues one more strike, he will be precluded from proceeding-4-

in forma pauperisin any further civil proceedings unless he is unde r “imminent danger of serious physical injury.” 28 U.S.C. § 19 15(g). Banks is further notified that despite this court’s dismissal of his appeal, he remains obligated to continue making partial payments until his appellat e filing fee is paid in full. See id. § 1915(b). For those reasons set out above, this appeal is her eby DISMISSED

. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge