Opinion · Court of Appeals for the Ninth Circuit

Fred George Cox v. Harry L. Hellerstein, Assistant Federal Public Defender, James F. Hewitt, Federal Public Defender

685 F.2d 1098

Type: Opinion
Court: Court of Appeals for the Ninth Circuit
Jurisdiction: Federal
Date: 1982-08-27
Topic: bankruptcy

holding that private attorneys do not act under color of state or federal law when representing clients | holding that private attorneys do not act under color of state or federal law when representing clients | holding that private attorneys do not act under color of state or federal law when representing clients | holding that private attorneys do not act under color of state or federal law when representing clients | holding that private attorneys do not act under color of state or federal law when representing clients | holding that private attorneys do not act under color of state or federal law when representing clients | holding that private attorneys do not act under color of state or federal law when representing clients | holding that private attorneys do not act under color of state or federal law when representing clients | holding that private attorneys do not act under color of state or federal law when representing clients | holding that private attorneys do not act under color of state or federal law when representing clients | holding that private attorneys do not act under color of state or federal law when representing clients | holding that private attorneys do not act under color of state or federal law when representing clients | holding that private attorneys do not act under color of state or federal law when representing clients | holding that private attorneys do not act under color of state or federal law when representing clients | holding that private attorneys do not act under color of state or federal law when representing clients | holding that private attorneys do not act under color of state or federal law when representing clients | holding that private attorneys do not act under color of state or federal law when representing clients | holding that “a public defender does not act under color of federal law in performing the … functions [of] a lawyer to an indigent defendant in a federal criminal proceeding” | holding that “a public defender does not act under color of federal law in performing the … functions [of] a lawyer to an indigent defendant in a federal criminal proceeding” | explaining that a federal public defender representing an indigent defendant does not act under color of federal law for purposes of a Bivens action | relying on Polk County to determine 11 that federal public defenders are not acting under color of federal law for purposes of Bivens action | relying on Polk Cty. to determine 17 that federal public defenders are not acting under color of federal law for purposes of Bivens 18 action | a federal public defender was not a federal officer acting under color of federal law when 17 he represented the plaintiff in the federal criminal proceeding, relying on Bivens | a federal public defender may not be sued for malpractice in a Bivens-type suit | a federal public defender was not a federal officer acting under color of federal law when he represented Cox in the federal criminal proceeding, relying on Bivens, 403 U.S. at 389-397 | finding guardian ad litem immune from suit

Citator

Cited by: 46 opinions

COX v. HELLERSTEIN,685 F.2d 1098(9th Cir. 1982)

FRED GEORGE COX, PLAINTIFF-APPELLANT, v. HARRY L. HELLERSTEIN, ASSISTANT

FEDERAL PUBLIC DEFENDER, JAMES F. HEWITT, FEDERAL PUBLIC DEFENDER,

DEFENDANTS-APPELLEES.

No. 81-4397.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 16, 1982.

Decided August 27, 1982.

Fred George Cox, in pro per.

Arthur W. Ruthenbeck, Blackmon, Wasserman, Blicker Ruthenbeck, Sacramento, Cal., for plaintiff-appellant.

Appeal from the United States District Court for the Northern District of California.

Before WISDOM^fn*and DUNIWAY, Senior Circuit Judges, and NORRIS, Circuit Judge.

NORRIS, Circuit Judge:

[1] In 1978, appellant Fred George Cox was convicted by a jury of aggravated armed bank robbery. His conviction was affirmed on appeal, and a petition for writ of certiorari was denied by the United States Supreme Court. Appellee Harry L. Hellerstein, Assistant Federal Public Defender, represented Cox throughout trial and the appellate process.

[2] In 1980, Cox filed a civil rights complaint alleging that Hellerstein, and appellee James F. Hewitt, Federal Public Defender, as Hellerstein's supervisor, violated Cox's federally-protected rights during the course of Hellerstein's court-appointed representation of Cox. In his complaint, Cox alleged that Hellerstein was "ineffective, inadequate, incompetent, and unprofessional" as defense counsel. Cox alleged that Hellerstein failed to call witnesses who should have been called, worked for the prosecution to obtain a conviction, and divulgedPage 1099confidential matters to the prosecution.¹The district court granted Hellerstein's motion to dismiss, the Cox appeals. We affirm on the ground thatPolk County v. Dodson,___ U.S. ___, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) is controlling authority that the district court lacked subject matter jurisdiction over Cox's civil rights action.

[3] InPolk County v. Dodson,the Supreme Court held that a public defender does not act "under color of state law" when representing an indigent defendant in a state criminal proceeding. Accordingly, there was no jurisdictional basis for an action brought under42 U.S.C. § 1983against a Polk County public defender on a claim of inadequate representation of the plaintiff in an appeal of his state robbery conviction.Id.102 S.Ct. at 448. The Court reasoned that a public defender does not act on behalf of the state, but rather serves the public by advancing the undivided interests of his client. "This is essentially a private function, traditionally filled by retained counsel, for which state office and authority are not needed."Id.102 S.Ct. at 450.

[4] Here, Cox has attempted to plead aBivens²action which requires him to plead and prove that Hellerstein was a federal officer acting under color of federal law when he represented Cox in the federal criminal proceeding.See Bivens,403 U.S. at 389-397, 91 S.Ct. at 2001-2005. Thus the only difference between this case andPolk Countyis that one is aBivensaction against a federal officer and the other a § 1983 action against a state officer. In either case, action under color of law is a jurisdictional requisite. If a public defender does not act under color of state law in representing an indigent defendant in a state criminal proceeding, it follows that a public defender does not act under color of federal law in performing the identical functions as a lawyer to an indigent defendant in a federal criminal proceeding. Accordingly,Polk Countycompels us to conclude Cox'sBivensaction suffers from a fatal jurisdictional defect which requires dismissal.³

[5] AFFIRMED.

The Honorable John Minor Wisdom, United States Circuit Judge for the Fifth Circuit, sitting by designation. ↩
In a separate action, Cox sought relief under28 U.S.C. § 2255from his 1979 conviction of armed bank robbery, claiming ineffective assistance of counsel. The petition was dismissed on June 3, 1982 by the United States District Court for the Northern District of California.United States v. Cox,No. CR 78-0399-WHO. ↩
Bivens v. Six Unknown Named Agents of Federal Bureau ofNarcotics,403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). ↩
Since we hold that a public defender does not act under color of law, we need not reach the issue whether a public defender is entitled to the same absolute immunity as judges and prosecutors.See Polk County v. Dodson,___ U.S. ___, ___ n.4, 102 S.Ct. 445, 449 n.4. 70 L.Ed.2d 509. ↩