NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 12 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

GARY RAY BETTENCOURT,                           No. 19-16524

                Plaintiff-Appellant,            D.C. No. 2:18-cv-02895-KJM-KJN

 v.
                                                MEMORANDUM*
GORDEN SPENCER, Merced County
Prosecutor; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                             Submitted May 6, 2020**

Before:      BERZON, N.R. SMITH, and MILLER, Circuit Judges.

      California state prisoner Gary Ray Bettencourt appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging wrongful

conviction and conspiracy claims. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo a district court’s dismissal under 28 U.S.C. § 1915A. Resnick


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
v. Hayes, 

, 447 (9th Cir. 2000). We affirm.

      The district court properly dismissed Bettencourt’s action as barred by Heck

v. Humphrey, 

(1994), because success would necessarily imply the

invalidity of Bettencourt’s conviction or sentence, and Bettencourt failed to allege

facts sufficient to show that his conviction or sentence has been invalidated. See

Wilkinson v. Dotson, 

, 78 (2005) (a prisoner in state custody cannot use

a § 1983 action to challenge the fact or duration of his confinement, but must

instead seek federal habeas corpus relief). To the extent that Bettencourt seeks

release on parole as an alternative to summary release, his request is denied for the

same reasons.

      Bettencourt’s motion for appointment of counsel (Docket Entry No. 5) is

denied.

      AFFIRMED.




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