Jose Fremonde Xenos v. NURIA SLOJUND On Appeal from the United States District Court for the Eastern…

HLD-107(February 2011) NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-4406
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JOSE FREMONDE XENOS,
Appellant
v.
NURIA SLOJUND
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 10-cv-04854)
District Judge: Honorable James Knoll Gardner
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
February 28, 2011
Before: McKEE, Chief Judge, ALDISERT and WEIS, Circuit Judges
(Opinion filed : April 18, 2011)
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OPINION
_________
PER CURIAM.

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2
Pro se appellant, Jose Fremonde Xenos, filed the underlying action
pursuant to 42 U.S.C. § 1983 against Nuria Slojund, Esq., his court-appointed appellate
attorney. Xenos complained about Slojund’s actions during the course of his appeal from
a state criminal proceeding which apparently ended adversely to him. The District Court
dismissed Xenos’ complaint sua sponte for lack of legal merit in accordance with 28
U.S.C. § 1915(e). For the reasons provided by the District Court, we agree and will
affirm.
As the District Court explained, a defense attorney “does not act under
color of state law when performing a lawyer’s traditional functions as counsel in a
criminal proceeding.” Polk County v. Dodson, 454 U.S. 312, 325 (1981). Because the
complaint contains no allegations to suggest that Slojund is a state actor properly sued
under § 1983, we conclude that the District Court did not err in dismissing Xenos’
complaint.1
1 Any attack on the criminal proceeding itself or the sentence ultimately imposed falls
within the purview of 28 U.S.C. § 2254, not an action filed under 42 U.S.C. § 1983.
Accordingly, we will summarily affirm the judgment of the District Court as
no substantial question is presented by this appeal. See Third Circuit LAR 27.4 and
I.O.P. 10.6.

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