IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT


                            S))))))))))))))Q
                             No. 95-10010
                           Summary Calendar
                            S))))))))))))))Q


     CLYDE WAYNE STUART,

                                               Plaintiff-Appellant,

          versus



     JULIUS WHITTER, Attorney,
     ET AL.,

                                               Defendants-Appellees.


                      S))))))))))))))))))))))))Q
      Appeal from the United States District Court for the
                   Northern District of Texas
                        (3:94-CV-2461-R)
                      S))))))))))))))))))))))))Q
                            (May 5, 1995)

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.*

PER CURIAM:

     Plaintiff-appellant    Clyde   Wayne   Stuart   (Stuart),       a   Texas

prisoner, proceeding pro se and in forma pauperis (IFP), filed this

civil rights   complaint   pursuant   to    42   U.S.C.   §   1983   against

defendants Elizabeth Tamez (Tamez) and John Withers (Withers), the



*
     Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled 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should not be published.
prosecuting attorneys in a Texas state criminal proceeding against

him; his trial counsel, Julius Whitter (Whitter); and Pamela

Strauss (Strauss), who served as the foreperson of the grand jury

that indicted him. Stuart alleged that the defendants conspired to

convict him of theft over $750, that the indictment was invalid

because it did not come from the grand jury but was signed by the

foreperson, and that he was improperly induced to plead guilty to

the theft offense as a result of an illegal conspiracy by the

defendants.   Stuart sought damages in excess of $20,000,000.

     A magistrate judge determined that Stuart's complaint lacked

an arguable basis in law because the prosecutors and the grand jury

foreperson enjoy absolute immunity from section 1983 liability and

because Stuart's counsel did not act under "color of state law" for

section 1983 purposes. The magistrate judge further noted that, to

the extent that Stuart challenged the validity of his criminal

conviction, his complaint must be construed as a petition for

habeas corpus relief.   Because the magistrate judge was unable to

determine whether Stuart had exhausted his state court remedies, he

instructed Stuart to file a petition pursuant to 28 U.S.C. § 2254.

     Stuart filed motions for the appointment of counsel and an

extension of time in which to file objections to the magistrate

judge's report.   Without ruling on the motions, the district court

conducted a de novo review of the case, dismissed Stuart's claim

for money damages, construed the remainder of the complaint as a

section 2254 petition, and ordered that the clerk of court transmit

a section 2254 form to Stuart.

     Stuart asserts that the district court abused its discretion

                                 2
when it failed to consider his motion for the appointment of

counsel     before      dismissing    his   complaint     as     frivolous.

Specifically, Stuart argues that the district court was required to

make specific findings on each of the four factors enunciated in

Ulmer v. Chancellor, 

, 212 (5th Cir. 1982).           Any such

error was harmless.

     Civil rights litigants are entitled to the appointment of

counsel in cases involving "exceptional circumstances." 

.     If the record is sufficiently clear, this Court may

affirm the denial of a motion for the appointment of counsel

without the district court's having made specific findings on the

Ulmer factors.       Jackson v. Dallas Police Dept., 

, 262

(5th Cir. 1986).      The record negates Stuart's assertion that this

case presents exceptional circumstances inasmuch as his pleadings

demonstrate    his     ability   to   provide   himself   with    adequate

representation.

     Stuart challenges the court's dismissal of his claims pursuant

to section 1915(d).      He also asserts that the district court had no

basis to construe his civil rights complaint as a petition for

habeas corpus relief and that he has exhausted his state-court

remedies.

     A district court may dismiss an IFP complaint if it determines

that the action is frivolous or malicious.         28 U.S.C. § 1915(d).

An action is frivolous if it lacks an arguable basis in either law

or fact.    Neitzke v. Williams, 

, 325 (1989).            This

Court reviews a district court's section 1915(d) dismissal for

abuse of discretion.       Denton v. Hernandez, 

, 1734

                                      3
(1992).

     The Supreme Court directed in Heck v. Humphrey, 

, 2372 (1994), that:

     "to recover damages for allegedly unconstitutional
     conviction or imprisonment, or for other harm caused by
     actions whose unlawfulness would render a conviction or
     sentence invalid, a § 1983 plaintiff must prove that the
     conviction or sentence has been reversed on direct
     appeal, expunged by executive order, declared invalid by
     a state tribunal authorized to make such determination,
     or called into question by a federal court's issuance of
     a writ of habeas corpus."

     The Heck court reasoned that section 1983 claims related to an

allegedly unlawful conviction or sentence were analogous to the

common law tort of malicious prosecution, which requires the

allegation and proof of the termination of the prior criminal

proceeding in favor of the accused.   

     Stuart's allegation that he was improperly induced to plead

guilty to theft over $750 because of an illegal conspiracy among

the defendants necessarily calls into question the lawfulness of

his conviction.   Under Heck, Stuart cannot assert a claim for

section 1983 relief based on this allegation unless and until the

duration of the imprisonment about which he complains is "reversed

. . . expunged . . . declared invalid . . . or called into question

by a federal . . . writ of habeas 

.

Inasmuch as he states that his petition for habeas corpus was

denied, Stuart has no claim for section 1983 relief.    Accordingly,

his complaint lacks an arguable basis in law and the district court

did not abuse its discretion when it dismissed it as frivolous

pursuant to section 1915(d).

     As to Stuart's argument that the district court erred when it

                                4
construed some of his claims as falling under section 2254, such

error, if any, is harmless inasmuch as the district court dismissed

the habeas aspects of his complaint without prejudice and Stuart

may still pursue habeas relief.   See McGrew v. Texas Bd. of Pardons

and Paroles, 

, 161 (5th Cir. 1995); Fed. R. Civ. P. 61.



                                                           AFFIRMED




                                  5