Waite v. Barnard et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Richard A. Waite
v. 	Civil No. 18-cv-290-JL
Thomas Barnard, Christine C. List, and
the New Hampshire Appellate Defender Program
REPORT AND RECOMMENDATION
Before the court is plaintiff Richard A. Waite’s complaint
(Doc. No. 1) asserting claims against the New Hampshire
Appellate Defender Program (“NHADP”) and NHADP Attorneys Thomas
Barnard and Christine List. 	The matter is here for preliminary
review pursuant to 28 U.S.C. § 1915A and LR 4.3(d)(1).
Preliminary Review Standard
The court conducts a preliminary review of prisoner
complaints filed in forma pauperis. 	See 28 U.S.C.
§§ 1915(e)(2), 1915A; LR 4.3(d)(1);. 	In conducting its
preliminary review, the court construes pro se complaints
liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). 	Stripped of legal conclusions, and with all reasonable
inferences construed in plaintiff’s favor, the complaint must
contain “sufficient factual matter, accepted as true, to ‘state
a claim to relief.’” 	See Ashcroft v. Iqbal, 556 U.S. 662, 678
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(2009) (citation omitted). 	Claims may be dismissed if, among
other things, the complaint fails to state a claim upon which
relief may be granted. 	See 28 U.S.C. §§ 1915(e)(2),
1915A(b)(1); LR 4.3(d)(1)(A).
Background
Waite asserts here that the representation he received from
the NHADP and Attorneys List and Barnard in his unsuccessful
appeal of his state criminal conviction, see State v. Waite, No.
2016-0233 (N.H. Mar. 8, 2018), violated his Sixth Amendment
right to the effective assistance of appellate counsel. 	Waite
asserts that the defendants’ representation of him was affected
by a conflict of interest which he did not waive.
Discussion
I. 	Non-State Actors
Waite asserts a claim for damages, construed by this court
as intending to be asserted under 42 U.S.C. § 1983. 	Section
1983 authorizes claims for relief filed by plaintiffs asserting
that a defendant acting under color of state law violated their
federal rights. 	Waite points to no other federal law that
provides a cause of action for his claims.
In general, a “public defender does not act under color of
state law when performing a lawyer’s traditional functions as
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counsel to a defendant in a criminal proceeding.” 	Polk Cnty. v.
Dodson, 454 U.S. 312, 325 (1981). 	A public defender can be held
to have engaged in state action for purposes of § 1983 only
under limited circumstances, none of which are present here.
See Georgia v. McCollum, 505 U.S. 42, 54 (1992) (describing
circumstances under which public defender could be deemed to be
state actor for purposes of § 1983). 	By the same token, the
representation provided by the NHAPD defendants at issue here
cannot be deemed to have been provided under color of state law.
See Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997)
(court-appointed appellate attorneys are not subject to suit
under 42 U.S.C. § 1983 for performing lawyer’s traditional
functions of representing criminal defendant). 	Therefore,
Waite’s claims against the NHAPD and the NHAPD defendants should
be dismissed.
II. 	Heck Doctrine
Under Heck v. Humphrey, 512 U.S. 477 (1994), federal courts
must dismiss claims asserted under 42 U.S.C. § 1983, if a
favorable judgment would necessarily imply the invalidity of
that person’s conviction or sentence, unless the conviction or
sentence has been previously reversed, expunged, or otherwise
declared invalid. 	Id. at 487. 	The Heck rule provides a
separate basis for dismissing this action, as Waite’s claims of
violations of his Sixth Amendment rights, if successful, would
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necessarily imply the invalidity of his state conviction, which
has not previously been invalidated. 	Therefore, Waite’s claims
are barred by Heck.
Conclusion
For the foregoing reasons, this action should be dismissed.
Any objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The fourteen day period may be extended upon
motion. 	Failure to file objections within the specified time
waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
May 10, 2018
cc: 	Richard A. Waite, pro se
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