* 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that this opinion should not be published and is not precedent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

October 22, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-21328

Conference Calendar

 

LARRY LEONARD HERRON,

Plaintiff-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, INSTITUTIONAL DIVISION; IBEAM HARRY; COLLETTE,

Defendants-Appellees.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-02-CV-3842

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

Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

Larry Leonard Herron, Texas prisoner # 00715927, appeals

the district court’s dismissal of his 42 U.S.C. § 1983 action

as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(b)(1). Herron’s

motion for appointment of counsel is DENIED. Herron acknowledges

that the Supreme Court has ruled that the retroactive application

of “Megan’s laws” requiring sexual offender registration and

notification do not violate the Ex Post Facto Clause. See
No. 02-21328

-2-

Smith v. Doe, 123 S. Ct. 1140, 1154 (2003); Connecticut

Department of Public Safety v. Doe, 123 S. Ct. 1160, 1164-65

(2003) (notification provisions of sex offender registration

law do not violate procedural due process); see also Moore

v. Avoyelles Correctional Center, 253 F.3d 870, 872 (5th Cir.

2001) (Louisiana sex offender notification law does not violate

the Constitution’s proscription of ex post facto laws.). 

However, Herron contends that the law still violates the Due

Process Clause because it discriminates against him. Herron

states that he was convicted in cause no. 916850 on February 12,

2003, for failure to comply as a sex offender. He states that

his failure to comply charge is now on appeal due to the fact

that his plea was coerced and involuntary. He also attacks his

guilty plea to the original sexual offense.

Herron’s brief, with its continued references to alleged

constitutional violations in connection with his convictions

for the original sexual offense requiring his registration, a

previous firearms offense, DWI, and failure to comply with the

sexual offender registration law, shows that the district court

was correct to interpret Herron’s complaint as a challenge to a

pending state criminal proceeding or a habeas petition. Herron

makes no argument challenging the district court’s reasons for

dismissing his complaint in this regard. The district court did

not abuse its discretion in dismissing Herron’s 42 U.S.C. § 1983

complaint as frivolous. Siglar v. Hightower, 112 F.3d 191, 193
No. 02-21328

-3-

(5th Cir. 1997). Herron’s appeal is without arguable merit and

is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983). Because the appeal is frivolous, it is DISMISSED. See

5th Cir. R. 42.2.

Herron is hereby informed that the dismissal of this appeal 

as frivolous counts as a strike for purposes of 28 U.S.C. § 1915(g),

in addition to the strike for the district court’s dismissal. 

See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996)

(“[D]ismissals as frivolous in the district courts or the court

of appeals count [as strikes] for the purposes of [§ 1915(g)].”). 

We caution Herron that once he accumulates three strikes, he

may not proceed IFP 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.