In Combs v. City of Dallas, 3:06-CV-0074-P, 2006 U.S. Dist. Lexis 92445 (N.D. Tex. 2006), the client sought to sue the attorneys who represented him during his state and federal criminal prosecutions. The court held that neither appointed nor retained counsel acts under color of state law in representing a defendant during criminal proceeding. 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). The same rationale applies to appointed or retained counsel in a federal criminal case. McLeod v. Knowles, 2006 WL 1738286, *1 (5th Cir. 2006) (unpublished per curiam) (extends Polk County v. Dodson to a Bivens action against court-appointed counsel). As such the conduct of criminal defense attorneys in representing a federal criminal defendant is not cognizable under 42 U.S.C. § 1983 or as a Bivens action.

The client alleged that one of the attorneys had conspired with the prosecutors. Assuming that this sufficiently alleged action under color of law, the court nonetheless found that the legal malpractice claim was barred because it inherently challenged the validity of the client's conviction:

In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the Supreme Court held that a party may not maintain a civil rights action based on the legality of a prior criminal proceeding unless a state court or federal habeas court has determined that the terms of confinement are in fact invalid. This rule applies equally to Bivens actions. Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994). The critical inquiry is whether a judgment in favor of the plaintiff in the civil action would "necessarily imply the invalidity of his conviction or sentence." Heck, 512 U.S. at 486-87. If so, the claim is barred unless the conviction has been reversed or declared invalid. Id.

[. . . Plaintiff's criminal conviction has not been reversed on direct appeal, expunged by executive order, or called into question by a federal writ of habeas corpus. . . . ]

Heck also bars Plaintiff's claims against defense counsel Cheryl Wattley. According to Plaintiff, Wattley willingly undertook his representation in federal criminal No. 3:03crl 88-N although she knew of a potential conflict of interest - namely her friendship with Detective Brenita Dunn and her prior representation of Detective Norman Bell during his state rape trial. (Complaint at 9 and Answer to Question 5). Plaintiff argues that he did not realize the intricacy of this conflict of interest until the day Detective Dunn testified at his criminal trial, and former Detectives Bell and Mosses were scheduled to testify. (Answer to Question 8). He concedes, however, that he hired Wattley as defense counsel because Detective Bell had refused to talk to his prior counsel, and specifically advised him that he would work with Wattley and give his testimony. (Answer to Question 7).

Plaintiff's conflict of interest claim if true implicates the validity of his conviction. An allegation that counsel worked under a conflict of interest raises a Sixth Amendment claim of ineffective assistance of counsel, which is cognizable in a post-conviction motion to vacate or set aside sentence under 28 U.S.C. § 2255. See U.S. v. Goodley, 2006 WL 1388439, *1 -2 (5th Cir. 2006) (claim that counsel operated under a conflict of interest is cognizable in a motion to vacate, set aside, or correct sentence); Torres v. Hynes, 200 WL 1052075, *3 -4 (E.D.N.Y. 2000) (applying Heck to Plaintiff's complaint which challenged conviction inter alia on the basis that counsel operated under a conflict of interest).

The same applies to Plaintiff's claim that Wattley allegedly conspired with government prosecutors -- i.e., Assistant United States Attorneys Dan Guess and Jeri Sims. (Answer to Question 9). In support of this assertion, Plaintiff states that Detective Dunn and Antonio Cruz's perjured testimony at trial was permitted without objection from the government. (Id.). He argues that Wattley denied him the right to testify in his own behalf allegedly in furtherance of this conspiracy. According to Plaintiff, he was the only person who knew that Dunn and Cruz's testimony was false and who could have rebutted their testimony at trial. (Id.). Plaintiff further alleges that Wattley failed to request a continuance of his trial, contrary to her initial assurance that she would ask for a continuance so that she would be better prepared for trial. (Id. and Answer to Question 8).

As noted above, Heck requires Plaintiff to have his conviction reversed or expunged on appeal or through a federal habeas petition, before pursuing a civil rights claim for money damages. Plaintiff cannot satisfy this pre-requisite at the present time. His conviction was recently affirmed and he has yet to file a § 2255 motion. Therefore, the District Court should dismiss Plaintiff's claims against Defendants Hale and Wattley with prejudice as frivolous to their being asserted again until the Heck conditions are met. See Johnson v. McEleveen, 101 F.3d 423, 424 (5th Cir. 1996) (noting preferred language); Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996) (§ 1983 claim which falls under the rule in Heck is legally frivolous); see also Marts v. Hines, 117 F.3d 1504, 1506 (5th Cir. 1997) (holding that dismissals as frivolous or malicious under 28 U.S.C. § 1915(e)(2) should be deemed to be dismissals with prejudice unless the district court specifically dismisses without prejudice).