HILBURN v. NELMS

WILLIAM SANDERSON, Magistrate Judge

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a civil rights complaint brought by a county inmate pursuant to 42 U.S.C. § 1983.

Parties: Plaintiff is presently confined at the Dallas County Jail in Dallas, Texas. Defendants are Judge John Nelms, Trial Counsel Hugh Lucas, and Appellate Counsel Deborah E. Faris. The court has not issued process in this case.

Statement of Case: The pro se complaint alleges Judge Nelms violated Plaintiff's due process right when he did not follow the applicable rules and procedures for enhancing his sentence in Cause No. FOO-49983-VN. The complaint further alleges that Lucas provided ineffective assistance of counsel when he failed to object to the sentencing enhancement, and that Farris provided ineffective assistance of appellate counsel when she failed to raise the enhancement issue on direct appeal. Plaintiff seeks monetary damages. He also requests reversal of his conviction and release from confinement. Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:

The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.

Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).

Plaintiff requests monetary damages against the trial judge who sentenced him in No. FOO-49983. Judge Nelms is absolutely immune from any claim for monetary damages. It is self-evident that this judge's actions during sentencing occurred in his capacity and function as state criminal court judge, which in and of itself renders him immune from a suit for monetary damages. Stump v. Sparkman, 435 U.S. 349, 359 (1978); see also Brandlev v. Keeshan, 64 F.3d 196, 200-201 (5th Cir. 1995).

Claims against his trial and appellate counsel, are not cognizable under 42 U.S.C. § 1983. It is established that neither appointed nor retained counsel acts under color of state law in representing a defendant at trial or on direct appeal.See Polk County v. Dodson, 454 U.S. 312, 324 (1981) (public defender does not act under color of state law when performing a lawyer's traditional functions as counsel to a defendant in a criminal case); Mills v. Criminal Dist. Court No. 3, 837 F.2d 677, 678 (5th Cir. 1988) (court appointed counsel are not official state actors); Russell v. Millsap, 781 F.2d 381, 383 (5th Cir. 1985) (retained counsel does not act under color of state law).

Plaintiff's claims requesting reversal of his conviction and release from confinement are cognizable only in the context of a habeas corpus action pursuant to 28 U.S.C. § 2254. See Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973); Wilson v. Foti, 832 F.2d 891, 892 (5th Cir. 1987) (Where a state prisoner attacks the duration of his confinement, "`the appropriate cause of action is a petition for habeas corpus, even though the facts of the complaint might otherwise be sufficient to state a claim under § 1983.'"); see also Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997) (a petition for a writ of habeas corpus permits a petitioner to seek immediate or earlier release from custody, whereas a complaint pursuant to 42 U.S.C. § 1983 provides the proper avenue to challenge unconstitutional conditions of confinement and prison procedures); Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (per curiam) (same).

Before filing a habeas corpus action pursuant to 28 U.S.C. § 2254 a state prisoner must exhaust available state remedies.See 28 U.S.C. § 2254(b). As noted above, Plaintiff has a petition for discretionary review presently pending before the Texas Court of Criminal Appeals. Hilburn's state remedies will not be exhausted until that court rules on his petition. Therefore, construed as a petition for a writ of habeas corpus, the same should be dismissed without prejudice to his right to file a § 2254 petition after exhausting state habeas corpus remedies. See 28 U.S.C. § 2254(b).

RECOMMENDATION:

For the foregoing reasons, it is recommended that Plaintiff's claims for monetary damages against Judge John Nelms and his trial and appellate counsel be dismissed with prejudice as frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i) and (iii), 1915A(b)(1) and (2).

It is further recommended that Plaintiff's request for habeas type relief, construed as a petition for a writ of habeas corpus, be dismissed without prejudice to Plaintiff s right to file a § 2254 petition after exhausting state habeas corpus remedies. See 28 U.S.C. § 2254(b).

A copy of this recommendation will be mailed to Plaintiff.

In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.