Smith v. Gambrell

Fifth Circuit

Smith v. Gambrell

108 F. App'x 218

CourtCourt of Appeals for the Fifth Circuit

DecidedSeptember 23, 2004

Docket04-60472

StatusUnpublished

Cited by4 cases

This text of 108 F. App'x 218 (Smith v. Gambrell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Gambrell, 108 F. App'x 218 (5th Cir. 2004).

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Opinion

PER CURIAM: *

Donald E. Smith, Mississippi prisoner #31733, appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint as untimely. This court reviews for abuse of discretion. Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir.1993).

Smith’s claims against Andrew Gambrell and Rex Jones arise from the proceedings leading to and surrounding his indictment, conviction, and sentence. His allegations of ineffective assistance and prosecutorial misconduct call into question the validity of his conviction, and Smith therefore must *219 satisfy the conditions of Heck v. Humphrey, 512 U.S. 477, 484-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), before he can proceed in a civil rights action. Therefore, the dismissal of Smith’s claims against Gambrell and Jones is AFFIRMED, but the judgment is AMENDED to state that the claims are DISMISSED WITH PREJUDICE to their being asserted again until the Heck conditions are met. Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir.1996). Smith has not challenged the district court’s conclusion that his claims affecting his eligibility for immediate release must be raised in habeas, and any such claim is deemed abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.1987).

Smith’s claims against Lindsay Carter and Dewitt Allred arise out of postconviction proceedings in his case. Smith has not established that the district court abused its discretion in dismissing these claims as untimely. See Gartrell, 981 F.2d at 256; Miss.Code Ann. § 15-1-49(1); Hemphill-Weathers v. Farrish, 779 So.2d 167, 171 (Miss.Ct.App.2001). The judgment of the district court is therefore AFFIRMED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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PER CURIAM: *

Donald E. Smith, Mississippi prisoner #31733, appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint as untimely. This court reviews for abuse of discretion. Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir.1993).

Smith’s claims against Andrew Gambrell and Rex Jones arise from the proceedings leading to and surrounding his indictment, conviction, and sentence. His allegations of ineffective assistance and prosecutorial misconduct call into question the validity of his conviction, and Smith therefore must *219 satisfy the conditions of Heck v. Humphrey, 512 U.S. 477, 484-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), before he can proceed in a civil rights action. Therefore, the dismissal of Smith’s claims against Gambrell and Jones is AFFIRMED, but the judgment is AMENDED to state that the claims are DISMISSED WITH PREJUDICE to their being asserted again until the Heck conditions are met. Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir.1996). Smith has not challenged the district court’s conclusion that his claims affecting his eligibility for immediate release must be raised in habeas, and any such claim is deemed abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.1987).

Smith’s claims against Lindsay Carter and Dewitt Allred arise out of postconviction proceedings in his case. Smith has not established that the district court abused its discretion in dismissing these claims as untimely. See Gartrell, 981 F.2d at 256; Miss.Code Ann. § 15-1-49(1); Hemphill-Weathers v. Farrish, 779 So.2d 167, 171 (Miss.Ct.App.2001). The judgment of the district court is therefore AFFIRMED.

*

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.

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108 F. App'x 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-gambrell-ca5-2004.

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