United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER
R. Martinez United States District Judge
day, the Court considered Plaintiff Francisco Castaneda's
[hereinafter "Plaintiff] 42 U.S.C. § 1983
"Civil Rights Complaint" (ECF No. 3) [hereinafter
"Complaint"], filed on July 23, 2019; the
"Report and Recommendation of Magistrate Judge"
(ECF No. 5) [hereinafter "Report and
Recommendation"], entered on July 24, 2019; and
Plaintiffs "Motion to Object to; and Traverse Magistrate
Judge's Proposed Findings" (ECF No. 15) [hereinafter
"Objections"], filed on September 4, 2019. For the
reasons discussed below, the Court concludes that it will
overrule Plaintiffs Objections, accept the Magistrate
Judge's Report and Recommendation, and dismiss Plaintiffs
alleges in his Complaint that his retained attorney,
Defendant James D. Lucas, failed to keep him informed of the
status of his state habeas application and, as a result, he
missed the deadline for filing a federal petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Compl. 4.
Plaintiff asks the Court to order Defendant to return a $12,
000 retainer, fashion a remedy for his lost opportunity to
file a § 2254 petition, and enjoin Defendant from using
the title "attorney." Id.
THE REPORT AND RECOMMENDATION
Magistrate Judge to whom the Court referred this matter
recommends that the Court dismiss Plaintiffs lawsuit,
pursuant to the screening provisions of 28 U.S.C. §
1915(e)(2)(B), because it is frivolous. R. &. R. 1;
See 28 U.S.C. § 636(b)(1)(B) (permitting a
district court, on its own motion, to refer a pending matter
to a United States Magistrate Judge for a report and
recommendation). The Magistrate Judge explains that
'"[t]here is no [Sixth Amendment] constitutional
right to an attorney in state post-conviction
proceedings." Id. at 4 (citing Coleman v.
Thompson, 501 U.S. 722, 752 (1991)). Thus, "a
petitioner cannot claim constitutionally ineffective
assistance of counsel in such proceedings." Id.
Furthermore, the Magistrate Judge notes that the
Antiterrorism and Effective Death Penalty Act
"specifically provides that '[t]he ineffectiveness
or incompetence of counsel during Federal or State collateral
post-conviction proceedings shall not be a ground for relief
in a proceeding arising under section 2254."'
Id. at 5-6 (citing 28 U.S.C. § 2254(i)).
Finally, the Magistrate Judge suggests that, "[t]o the
extent Plaintiffs allegations raise a claim of legal
malpractice or a breach of contract claim, the bases of such
claims do not arise from the United States Constitution or
federal statutes or treaties, which would provide the Court
with federal question jurisdiction over the claims."
Id. at 6 (citing 28 U.S.C. § 1331).
Accordingly, the Magistrate Judge recommends that the Court
"decline to exercise supplemental jurisdiction over
Plaintiffs state law claims of legal malpractice and breach
of contract." Id. at 7.
expands on his Complaint and explains in his Objections that
he "was denied his right to present his State conviction
for Federal Habeas Corpus review ... by Defendant's
negligent actions." Objs. 2-3. Thus, "his 6th
U.S.C. Amendment right to the effective assistance of counsel
[was] abridged." Id. at 5. Additionally,
Plaintiff argues that "due to defendant's
negligence, he ... has suffered egregious harm and
injury." Id. at 6. Lastly, Plaintiff maintains
that Defendant "as an agent of the state judiciary,
through his being an 'officer' to the court, . . .
allowed the balance between the State and Plaintiff to become
'ONE SIDED', thereby causing a hurdle ... before
Plaintiff." Id. at 6.
who files timely written objections to a magistrate
judge's report is entitled to a de novo determination as
to those portions of the report to which the party objects.
28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3).
However, the objections must specifically identify those
findings or recommendations which the party wishes the Court
to consider. 28 U.S.C.§ 636(b)(1)(C); Fed.R.Civ.P.
72(b)(2); W.D. Tex. Local R. app. C Rule 4(b). Additionally,
the Court need not consider "frivolous, conclusive, or
general objections." Battle v. United States Parole
Comm'n, 834 F.2d 419, 421 (5th Cir. 1987) (quoting
Nettles v. Wainwright, 677 F.2d 404, 410 n.8 (5th
Cir. 1982) (en banc)). As to the other portions of the
report, or if a party does not file written objections, the
Court applies a "clearly erroneous, abuse of discretion
and contrary to law" standard of review. United
States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
After completing its review, the Court may accept, reject, or
modify the report, in whole or in part. 28 U.S.C. §
636(b)(1)(C); Fed.R.Civ.P. 72(b).
state a claim under section 1983, a plaintiff must allege
facts tending to show (1) that he has been 'deprived of a
right secured by the Constitution and the laws of the United
States, ' and (2) that the deprivation was caused by a
person or persons acting 'under color of state law."
Bass v. Parkwood Hosp., 180 F.3d 234, 241 (5th Cir.
1999) (quoting Flagg Bros. v. Brooks, 436 U.S. 149,
155 (1978)). However, "[w]here a government
official's act causing injury to life, liberty, or
property is merely negligent, 'no procedure for
compensation is constitutionally required."'
Daniels v. Williams, 474 U.S. 327, 333 (1986)
(quoting Parratt v. Taylor, 451 U.S. 527, 548
(1981), overruled by Daniels, 474 U.S. 327).
Furthermore, "private attorneys, even court-appointed
attorneys, are not official state actors, and generally are
not subject to suit under section 1983." Mills v.
Criminal Dist. Court No. 3, 837 F.2d 677, 679 (5th Cir.
1988). Only "private attorneys who have conspired with
state officials may be held liable under section 1983 even
though the state officials with whom they conspire are
themselves immune from suit." Id.
expands on his claims in his Objections. He alleges that his
retained attorney's actions were negligent, not
intentional. Plaintiff provides no evidence that his counsel
conspired with state officials or was somehow a state actor.
Therefore, based on his expanded claims in his Objections,
Plaintiff is not entitled to compensation under § 1983.
Daniels, 474 U.S. at 333; Mills, 837 F.2d