* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-41115

Summary Calendar

LANE MATTHEW BOURQUE,

Petitioner–Appellant,

v.

MITCH WOODS, Sheriff of Jefferson County,

Respondent–Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:06-CV-481

Before KING, DENNIS, and OWEN, Circuit Judges. 

PER CURIAM:*

Lane Matthew Bourque, now Texas prisoner # 1399609, seeks a certificate

of appealability (COA) to appeal the district court’s dismissal of his 28 U.S.C.

§ 2241 petition on grounds of exhaustion and mootness. He also appeals the

district court’s dismissal of the 42 U.S.C. § 1983 claims that he raised in his

habeas petition. The district court dismissed those claims as frivolous and for

failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). Since filing his

§ 2241 petition, which challenged Bourque’s pretrial confinement with respect

United States Court of Appeals

Fifth Circuit

F I L E D

October 14, 2008

Charles R. Fulbruge III

Clerk
No. 07-41115

2

to three state court indictments for theft, Bourque has been convicted in

connection with one of those indictments and has been sentenced to 12 years in

prison.

Bourque raises claims of excessive bail, prosecutorial delay, and defective

indictments. He argues that he was prevented by state law from presenting his

habeas claims to the Texas Court of Criminal Appeals because the state trial

court did not hold a hearing before it denied his state habeas petition. He

complains that he was not allowed to respond to the State’s motion to dismiss

and that he was denied a full and fair hearing in the state and federal habeas

courts. He argues that his pretrial claims should not be deemed moot because,

if there had been a ruling on the merits of those claims, he never would have

been convicted and sentenced. Finally, he argues that the district court erred

in refusing to grant his request for severance of his § 1983 claims from his

habeas proceedings.

A COA may issue only if Bourque has “made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the

district court’s denial of habeas relief is based on procedural grounds, a COA

may issue only if the petitioner shows “that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.” Slack v. McDaniel, 529

U.S. 473, 484 (2000). As Bourque has failed to make such a showing, his motion

for a COA is denied.

Bourque has not challenged the district court’s finding that his requests

for monetary damages pursuant to § 1983 were barred by Heck v. Humphrey,

512 U.S. 477 (1994). Accordingly, he has not shown that the district court erred

in dismissing his § 1983 suit as frivolous and for failure to state a claim. As he

has not shown any error in the dismissal of his § 1983 suit, he cannot show that

the district court abused its discretion in finding that judicial economy was
No. 07-41115

3

served by not severing his § 1983 claims from his habeas proceedings. See

Applewhite v. Reichhold Chems., Inc., 67 F.3d 571, 574 (5th Cir. 1995).

As Bourque’s appeal of his § 1983 claims is without arguable merit, it is

dismissed as frivolous. 5TH CIR. R. 42.2; see Howard v. King, 707 F.2d 215,

219-20 (5th Cir. 1983). 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 of his § 1983 suit. See Adepegba v. Hammons, 103 F.3d 383,

388 (5th Cir. 1996). Bourque is warned that if he accumulates three strikes, he

will be barred from proceeding in forma pauperis pursuant to §1915(g) while he

is incarcerated or detained in any facility unless he is under imminent danger

of serious physical injury. See § 1915(g).

COA DENIED; APPEAL DISMISSED.