|HENRY LEE MCCONE,||
The district court concluded that judgment in Mr. McCone's favor would imply the invalidity of his conviction. R. doc. 13, at 3. The district court therefore dismissed the complaint because Mr. McCone did not show "that his conviction or sentence has either been reversed on direct appeal, expunged by executive order or declared invalid by a state tribunal, or called into question by a federal court's issuance of a writ of habeas corpus as required by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)." R. doc. 13, at 2. We review the district court's dismissal of Mr. McCone's complaint de novo. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999). Having done so, we find no error in the district court's dismissal of the complaint, 28 U.S.C. § 1915(e)(2)(B)(ii), and further find that Mr. McCone's appeal is frivolous. § 1915(e)(2)(B)(i). Accordingly, we DENY leave to proceed in forma pauperis and DISMISS this appeal. §1915(e)(2)(B)(i) & (ii). This dismissal counts as a "prior occasion" or "strike" for the purposes of the "three strikes" provision of the Prison Litigation Reform Act, as set forth in § 1915(g).
Entered for the Court
Paul J. Kelly, Jr.
*. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
2. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.