Rudolph v. Allen

Robert Rudolph is a prisoner of the State of Alabama, serving sentences totaling thirty-five years following his 1974 conviction in the Circuit Court of Montgomery, Alabama, for crimes against nature and for second degree murder. In 1980 he instituted this action in the district court against Walter Allen, his court-appointed counsel in the state criminal proceedings, seeking damages under 42 U.S.C. § 1983 for ineffective assistance of counsel.

The court dismissed the action under the doctrine of res judicata; in 1977, it had dismissed an identical § 1983 suit by Rudolph against Allen from which Rudolph took no appeal. In the alternative, the court reiterated its holding in the first action that a § 1983 suit against appointed counsel must fail for lack of state action. United States ex rel. Simmons v. Zibilich, 542 F.2d 259 (5th Cir. 1976); O’Brien v. Colbath, 465 F.2d 358 (5th Cir. 1972).

Rudolph’s application to the district court for leave to appeal its order in forma pauperis was denied and his subsequent application to this court is before us. Because the district court’s order clearly is in accord with the decisions of this court, Rudolph’s appeal is frivolous. Therefore, we deny his application to proceed in forma pauperis. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).

IT IS ORDERED that the petitioner’s pro se application for leave to appeal in forma pauperis is DENIED.

. Civil Action No. 80-426-N.

. Civil Action No. 77-258-N.