Case: 10-11102     Document: 00511551576         Page: 1     Date Filed: 07/26/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 26, 2011
                                     No. 10-11102
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

STEVEN LEIJA RODRIGUES, also known as Steven Leija Rodriguez,

                                                  Plaintiff-Appellant

v.

RICK PERRY, The State of Texas Governor; RICK THALER, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION; DEBRA MCCARTT, Mayor of Potter County;
RANDALL C. SIMS, District Attorney Potter County; MIKE SHUMATE, Sheriff
of Potter County,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:09-CV-313


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Steven Leija Rodrigues, Texas prisoner # 1321746, proceeding pro se and
in forma pauperis, filed a complaint against the defendants pursuant to 42
U.S.C. § 1983.        The complaint alleged that Rodrigues was “charged” and
“maliciously prosecuted” in Potter County in 2005 for aggravated kidnaping


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-11102    Document: 00511551576      Page: 2   Date Filed: 07/26/2011

                                  No. 10-11102

(case # 50,335-D) even though he was acquitted by a grand jury of the charge
and that he was sent “to prison with a 15 year sentence for aggravated assault,
a conviction that doesn’t belong to” him. According to Rodrigues, this aggravated
assault conviction (case # 32,784-C) is in the name of Leonard Christopher
Cantly. He believes that he is wrongly being held in custody pursuant to
Cantly’s aggravated assault conviction.
      The dismissal of Rodrigues’s claims, as both frivolous and for failure to
state a claim, is reviewed de novo, using the same standard of review applicable
to Federal Rule of Civil Procedure 12(b)(6) dismissals. Samford v. Dretke, 

, 678 (5th Cir. 2009); Geiger v. Jowers, 

, 373 (5th Cir. 2005).
A review of the record reveals that the district court correctly determined that
Rodrigues’s claims were foreclosed by Preiser v. Rodriguez, 

(1973),
and barred by Heck v. Humphrey, 

(1994). Rodrigues’s attack on
Cantly’s conviction, as well as his attack on his own aggravated assault
conviction, to the extent he seeks release from confinement, must be raised in a
habeas corpus proceeding, not a § 1983 action, see 

,
and to the extent he seeks damages for his illegal imprisonment, his complaint
is barred by Heck because, and contrary to his arguments, he can only satisfy the
Heck requirements by having a court declare his convictions invalid in a habeas
proceeding, which he has not done. See 

.
      Accordingly, the district court’s judgment is AFFIRMED.




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