Richards, Terence B. v. USA Fed'l Defender , 263 F. App'x 496 ( 2008 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 6, 2008*
Decided February 6, 2008
By the Court:
No. 07-2798
TERENCE B. RICHARDS, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division
v.
No. 07 C 1528
PAUL FLYNN,
Defendant-Appellee. Robert W. Gettleman,
Judge.
ORDER
Terence Richards pleaded guilty to two counts of transmitting threatening
communications in interstate commerce, see 18 U.S.C. § 875(c), and was sentenced
in February 2007 to a total of thirty months’ imprisonment. His direct appeal is
pending in this court. See United States v. Richards, No. 07-1429 (7th Cir. filed
Feb. 26, 2007). In this action under Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388, 389 (1971), Richards complains about the
ineffective assistance he says he received from his attorney, Assistant Federal
Defender Paul Flynn. The district court dismissed Richards’s complaint at initial
screening, see 28 U.S.C. § 1915A, concluding that it fails to state a claim. The
district court noted that a Bivens action for legal malpractice cannot be maintained
against appointed lawyers, even those employed by the federal government, because
*
Because of the procedural posture of this case (it was dismissed on
preliminary screening prior to service), the defendant is not participating in this
appeal. Thus, the appeal is submitted on the briefs and the record. See FED. R.
APP. P. 34(a)(2).
No. 07-2798 Page 2
they do not act under color of law. See Polk County v. Dodson, 454 U.S. 312, 317-18
(1981); Haley v. Walker, 751 F.2d 284, 285 (8th Cir. 1984); Cox v. Hellerstein, 685
F.2d 1098, 1099 (9th Cir. 1982). The district court also informed Richards that a
civil rights action cannot be used to challenge a criminal conviction. See Preiser v.
Rodriguez, 411 U.S. 475, 488-90 (1973); Savory v. Lyons, 469 F.3d 667, 670 (7th Cir.
2006).
We agree with the district court on both points. Accordingly, the judgment is
AFFIRMED. The district court told Richards that he incurred a “strike” under 28
U.S.C. § 1915(g) for filing a complaint that fails to state a claim, and we note that
he now has incurred another “strike” for filing a frivolous appeal.