* Local Rule 47.5.1 provides: "The publication of opinions that have no

precedential value and merely decide particular cases on the basis of wellsettled principles of law imposes needless expense on the public and burdens on

the legal profession." Pursuant to that rule, the court has determined that this

opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-50068

Summary Calendar

_______________

DERRYL LEE BUCKINGHAM,

Plaintiff-Appellant,

VERSUS

STATE OF TEXAS

and

ATTORNEY GENERAL OF TEXAS,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Western District of Texas

(94-CV-631)

_________________________

(May 25, 1995)

Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.

PER CURIAM:*

Derryl Buckingham appeals the dismissal, as frivolous under

28 U.S.C. § 1915(d), of his state prisoner's civil rights suit

brought pursuant to 42 U.S.C. § 1983. We modify the judgment and

affirm it as modified.
2

I.

Buckingham sued the State of Texas and its attorney general,

styling his action as a § 1983 action with habeas relief, raising

the same allegations that he had previously raised in his earlier

federal habeas corpus action, which he admitted had been dismissed

for failure to exhaust state remedies. Buckingham stated that the

assistant attorney general had admitted that Buckingham's allegations about the illegality of his conviction in his federal writ

were true. Buckingham requested both monetary damages and

immediate release from imprisonment.

The magistrate judge issued a "show cause" order, construing

Buckingham's complaint as a petition for federal habeas relief

because of the request for release from imprisonment, and noted

that Buckingham previously had been sanctioned $50 by the Eastern

District of Texas for filing frivolous suits and that the clerk of

that court had ordered Buckingham not to file any new cases until

the $50 had been paid. The magistrate judge also noted that the

chief judge of the Western District of Texas had issued an order

that the judges of the district observe and enforce sanctions

imposed by other United States district courts against a Texas

state prisoner who files a new civil action in the Western

District, unless the prisoner established a change of circumstances

or demonstrated that enforcing the previously imposed sanctions

would be unjust. The magistrate judge also found that Buckingham's

complaint was frivolous and ordered him to show cause why his
3

complaint should not be dismissed.

Buckingham responded by contesting the legality of the

sanction imposed by the Eastern District and by stating that the

court would be an accomplice if it upheld the sanction. Buckingham

also admitted that his § 1983 action was of a habeas nature and

that his requested relief should be granted because the attorney

general had admitted Buckingham's allegations of wrongdoing.

The magistrate judge reported that the sanctions imposed by

the Eastern District were permissible and that Buckingham had not

demonstrated that they were unjust. The magistrate judge also

construed Buckingham's suit as a petition for federal habeas relief

and stated that Buckingham had not asserted whether he had

exhausted his state remedies regarding his issues in the present

action. The magistrate judge recommended dismissing Buckingham's

complaint as frivolous and further recommended sanctioning

Buckingham in the amount of $100, with a warning that any future

filing be with permission of a federal judge, and that any future

frivolous filings would result in additional sanctions.

Over Buckingham's objections, the district court adopted the

magistrate judge's report and recommendation, dismissed

Buckingham's complaint pursuant to § 1915(d), and imposed a

sanction of $100. The court also noted, as a basis, that

Buckingham had failed to comply with the sanctions of the Eastern

District. The court further ordered that the failure to either pay

the monetary sanctions or to seek permission from the court would

be cause for striking any future pleadings. The court specifically
4

noted that Buckingham's complaint was "patently frivolous" and was

an "obvious attempt to circumvent the sanctions imposed upon him

for similar activities" in the Eastern District.

II.

Liberally construed, Buckingham's brief asserts that the

district court abused its discretion in dismissing his complaint as

frivolous. A complaint filed in forma pauperis may be dismissed as

frivolous pursuant to § 1915(d) if it has no arguable basis in law

or fact. Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993). We

review a § 1915(d) dismissal for abuse of discretion. Id.

A § 1983 action is the appropriate remedy for recovering

damages for mistreatment or illegal administrative procedures.

Richardson v. Fleming, 651 F.2d 366, 372 (5th Cir. 1981). The writ

of habeas corpus is the appropriate federal remedy for a state

prisoner challenging the fact of confinement. Preiser v.

Rodriguez, 411 U.S. 475, 484 (1973); see also Deters v. Collins,

985 F.2d 789, 792-96 (5th Cir. 1993). To determine which remedy a

prisoner should pursue, we look beyond the relief sought to

determine whether the claim, if proved, would factually undermine

or conflict with the state court conviction. Richardson, 651 F.2d

at 373.

In order to recover damages for an allegedly unconstitutional

imprisonment, a § 1983 plaintiff must prove that his conviction or

sentence has been reversed on direct appeal, expunged by executive

order, declared invalid by an authorized state tribunal, or called
5

into question by a federal court's issuance of a writ of habeas

corpus under 28 U.S.C. § 2254. See Heck v. Humphrey, 114 S. Ct.

2364, 2372 (1994). Otherwise, such a claim is not cognizable under

§ 1983 and must be dismissed.

Buckingham states on appeal that habeas relief is part of his

§ 1983 action and that he is suing for unconditional release in

addition to monetary damages. He further contends that his

complaint alleged constitutional violations that would cast doubt

on his conviction. He continues to assert that the assistant

attorney general, in answering Buckingham's previous petition for

federal habeas relief, admitted Buckingham's allegations of

wrongdoing.

If Buckingham's complaint is construed as a § 1983 action

stemming from an unconstitutional imprisonment, his claims are not

cognizable, as he has failed to demonstrate that his conviction has

been set aside or otherwise called into question. See Heck, id.

Although Buckingham alleges that the assistant attorney general, in

the state's response to the state and federal habeas writs,

admitted Buckingham's factual allegations of the unconstitutional

violations surrounding his conviction, Buckingham's assertion is

incorrect. By Buckingham's own admission, the assistant attorney

general responded with rote language that every allegation of fact

was denied, except those that were supported by the record. This

language could not have constituted an admission of the invalidity

of Buckingham's conviction. This fact is further demonstrated by

Buckingham's concession that he was denied both state and federal
6

relief. Therefore, Buckingham cannot seek damages under § 1983 as

he cannot demonstrate that his conviction has been invalidated,

reversed, or otherwise called into question.

Additionally, Buckingham cannot appropriately seek federal

habeas relief. He asserts in his complaint that his confession was

coerced and obtained through unkept promises by the state, that he

received ineffective assistance of counsel, that his counsel had a

conflict of interest, and that his indictment was defective.

Buckingham admits, however, that his previous federal habeas

petition, which also raised the conflict-of-interest issue, was

dismissed pursuant to the state's motion to dismiss for

Buckingham's failure to exhaust his state remedies regarding the

conflict-of-interest claim.

In general, before a state prisoner may seek federal habeas

relief, he must exhaust available state remedies. See 28 U.S.C.

§ 2254(b). The exhaustion requirement reflects federal-state

comity concerns. Picard v. Connor, 404 U.S. 270, 275 (1971).

Exhaustion normally requires only that the federal claim was fairly

presented to the highest court of the state, either on direct

review or in a post-conviction attack. Carter v. Estelle, 677 F.2d

427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056 (1983).

For a claim to be exhausted, the state court must have been

apprised of the facts and the legal theory upon which the

petitioner bases his assertion. Burns v. Estelle, 695 F.2d 847,

849 (5th Cir. 1983). "It is well settled that a habeas petition

must be dismissed if any issue has not been exhausted in the state
7

courts." Thomas v. Collins, 919 F.2d 333, 334 (5th Cir. 1990),

cert. denied, 501 U.S. 1235 (1991). "If the petitioner did not

fairly present the substance of his claims to the state

courts . . ., the petition must be dismissed . . . so that the

state court may have a fair opportunity to determine" the claims.

Dispensa v. Lynaugh, 847 F.2d 211, 217-18 (5th Cir. 1988).

Buckingham has made no attempt, either in the district court

or on appeal, to demonstrate that all of his claims were fairly

presented to the state courts. The implicit conclusion, gleaned

from Buckingham's previous admission that his earlier federal

habeas action was dismissed for failure to exhaust, is that he has

failed to exhaust his state remedies for all of his issues in his

current action.

The district court did not abuse its discretion, but the

dismissal is hereby modified to be a dismissal without prejudice.

If the action is construed as a petition for federal habeas relief,

a dismissal with prejudice would effectively be a dismissal on the

merits, which in this case would be inappropriate, as the district

court did not reach the merits of Buckingham's issues, but instead

noted that Buckingham had failed to exhaust his state remedies.

III.

Buckingham also appears to assert that the district court's

sanction of $100 was illegal. Buckingham contends that his claims

were supported by the record.

By signing his complaint, Buckingham certified that, after a
8

reasonable inquiry, to the best of his knowledge, information, and

belief, the matters contained in his complaint were well-grounded

in fact and warranted by existing law. FED. R. CIV. P. 11. Abuse

of discretion is the standard of review for whether a rule 11

violation occurred and for the nature of the sanction imposed.

Thomas v. Capital Security Servs., 836 F.2d 866, 872 (5th Cir.

1988) (en banc). Considering Buckingham's obvious attempt to

escape the sanctions imposed by the Eastern District, the district

court did not abuse its discretion in imposing a sanction of $100.

Buckingham is hereby warned that if he continues to file

frivolous appeals, he may be subject to sanctions in this court.

The judgment of dismissal is MODIFIED to be a dismissal without

prejudice; as so modified, the judgment is AFFIRMED. All pending

motions are DENIED.

AFFIRMED.