Agbosasa v. Cooper ( 1993 )

USCA1 Opinion

          June 14, 1993         [NOT FOR PUBLICATION]
                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT



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          No. 92-2421
          No. 92-2421

            
            


                                 SAMSON O. AGBOSASA,
                                 SAMSON O. AGBOSASA,

                                Plaintiff, Appellant,
                                Plaintiff, Appellant,

                                          v.
                                          v.

                                  DAVID A. COOPER, 
                                  DAVID A. COOPER, 

                                 Defendant, Appellee.
                                 Defendant, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT
                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND
                           FOR THE DISTRICT OF RHODE ISLAND


                    [Hon. Ronald R. Lagueux, U.S. District Judge]
                    [Hon. Ronald R. Lagueux, U.S. District Judge]
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                                        Before
                                        Before

                              Torruella, Cyr and Boudin,
                              Torruella, Cyr and Boudin,
                                   Circuit Judges.
                                   Circuit Judges.
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               Samson O. Agbosasa on brief pro se.
               Samson O. Agbosasa on brief pro se.
               __________________
               Scott A. Lutes on brief for appellee.
               Scott A. Lutes on brief for appellee.
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                      Per  Curiam.    This is  a  pro  se  appeal from  a
                      Per  Curiam.    
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            district court order dismissing appellant's legal malpractice

            suit for lack  of subject matter jurisdiction  and failure to

            state a federal claim.  We affirm.

                      Appellant-plaintiff,  Samson O.  Agbosasa, retained

            the  appellee-defendant, David A. Cooper, to  defend him in a

            criminal  prosecution  on  federal charges  of  filing  false

            claims  for  federal  income  tax refunds  and  making  false

            representations   regarding   a   social   security   number.

            Appellant  was convicted  and sentenced.   Appellant  has now

            sued appellee for "legal malpractice,  ineffective assistance

            and  knowing and  wilful deprivation  of  Agbosasa's liberty,

            rights, privileges and immunities secured by the constitution

            and  laws of the United  States."  He  seeks compensatory and

            punitive damages.

                      The complaint states that the action  "arises under

            the  Deceptive Trade  Act  and consumer  protection Act,  USC

            Title  15,  and  the Sixth  Amendment  of  the  United States

            Constitution."   The district court granted appellee's motion

            to dismiss for  lack of jurisdiction over the  subject matter

            and  failure  to  state a  claim  upon  which  relief can  be

            granted.  The district court order of dismissal accepted  the

            Report  and Recommendation  of Magistrate  Judge recommending

            dismissal.   That  report  concluded that  appellant's  Sixth

            Amendment claim was "an impermissible attempt to collaterally



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            attack plaintiff's  conviction" and  that Title 15  could not

            "by any stretch of the imagination, be construed to cover the

            claims of legal malpractice the plaintiff has alleged."

                      We  agree that appellant's complaint fails to state

            a  federal claim.  Appellant sought to amend his complaint to

            specifically claim jurisdiction under  sections 1125 and 1117

            of  Title   15.     Those  sections,  however,   concern  the

            advertisement of goods and services in interstate commerce ( 

            1125) and recovery for  the violation of rights under    1125

            and federal patent and trademark laws  (  1117). The district

            court  correctly  determined  that  neither  section  can  be

            construed to cover appellant's legal malpractice claims.

                      Nor has appellant successfully stated a claim under

            the  Sixth Amendment.  Even if appellee had been appointed by

            the court, which he was not, his representation  of appellant

            would not  have been  "under color of  state law."   See Polk
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            County v. Dodson, 454 U.S. 312, 325 (1981); Jackson v. Salon,
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            614 F.2d  15, 16-17  (1st Cir. 1980).   In  this case,  where

            appellee was  retained by  appellant, appellee certainly  did

            not act  under color of state  law so as to  invoke the Sixth

            Amendment. See Oyegbola v. Murray, 791 F. Supp. 334 (D. Mass.
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            1992)   (dismissing   Sixth  Amendment   claim   in  attorney

            malpractice action  on  the grounds  that "a  court-appointed

            attorney does  not act  under color  of state law,  so as  to

            invoke [the Sixth Amendment].").



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                      Although    appellant    also   claims    diversity

            jurisdiction in his  brief, this issue was not  raised below.

            Therefore, we  will not address  appellant's diversity  claim

            for the first time on appeal.  See, e.g., Puleio v. Vose, 830
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            F.2d 1197, 1202 (1st  Cir. 1987), cert. denied, 485  U.S. 990
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            (1988).  The district court opinion dismissing this  case for

            lack of subject matter jurisdiction is affirmed.
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