Deas v. Potts

Joseph Deas, Jr., seeks to sue under 42 U.S.C. § 1983 the attorney whom he retained to represent him in a criminal matter. He alleges that his representation operated to deprive him of his constitutionally guaranteed ri£ht to the effective assistance of counsel, and, further, that the defendant failed to return $1,000 to Deas after he was discharged. The complaint seeks recovery of this $1,000 as well as additional amounts in compensatory and punitive damages.

A private attorney who is retained to represent a criminal defendant is not acting under color of state law, and therefore is not amenable to suit under § 1983. Nelson v. Stratton, 469 F.2d 1155 (5th Cir. 1972), cert. denied, 410 U.S. 957, 93 S.Ct. 1432, 35 L.Ed.2d 691 (1973); Szijarto v. Legeman, 466 F.2d 864 (9th Cir. 1972); Shelton v. Randolph, 373 F.Supp. 448 (W.D.Va.1974). Deas may — if he so desires — attack his conviction on the basis of ineffective representation of counsel by filing pursuant to 28 U.S.C. § 2254 a petition for writ of habeas corpus.

Accordingly, leave to proceed in forma pauperis is granted and the judgment of the district court is affirmed.