June 14, 1993 [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 92-2421
No. 92-2421
SAMSON O. AGBOSASA,
SAMSON O. AGBOSASA,
Plaintiff, Appellant,
Plaintiff, Appellant,
v.
v.
DAVID A. COOPER,
DAVID A. COOPER,
Defendant, Appellee.
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Before
Torruella, Cyr and Boudin,
Torruella, Cyr and Boudin,
Circuit Judges.
Circuit Judges.
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Samson O. Agbosasa on brief pro se.
Samson O. Agbosasa on brief pro se.
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Scott A. Lutes on brief for appellee.
Scott A. Lutes on brief for appellee.
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Per Curiam. This is a pro se appeal from a
Per Curiam.
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district court order dismissing appellant's legal malpractice
suit for lack of subject matter jurisdiction and failure to
state a federal claim. We affirm.
Appellant-plaintiff, Samson O. Agbosasa, retained
the appellee-defendant, David A. Cooper, to defend him in a
criminal prosecution on federal charges of filing false
claims for federal income tax refunds and making false
representations regarding a social security number.
Appellant was convicted and sentenced. Appellant has now
sued appellee for "legal malpractice, ineffective assistance
and knowing and wilful deprivation of Agbosasa's liberty,
rights, privileges and immunities secured by the constitution
and laws of the United States." He seeks compensatory and
punitive damages.
The complaint states that the action "arises under
the Deceptive Trade Act and consumer protection Act, USC
Title 15, and the Sixth Amendment of the United States
Constitution." The district court granted appellee's motion
to dismiss for lack of jurisdiction over the subject matter
and failure to state a claim upon which relief can be
granted. The district court order of dismissal accepted the
Report and Recommendation of Magistrate Judge recommending
dismissal. That report concluded that appellant's Sixth
Amendment claim was "an impermissible attempt to collaterally
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attack plaintiff's conviction" and that Title 15 could not
"by any stretch of the imagination, be construed to cover the
claims of legal malpractice the plaintiff has alleged."
We agree that appellant's complaint fails to state
a federal claim. Appellant sought to amend his complaint to
specifically claim jurisdiction under sections 1125 and 1117
of Title 15. Those sections, however, concern the
advertisement of goods and services in interstate commerce (
1125) and recovery for the violation of rights under 1125
and federal patent and trademark laws ( 1117). The district
court correctly determined that neither section can be
construed to cover appellant's legal malpractice claims.
Nor has appellant successfully stated a claim under
the Sixth Amendment. Even if appellee had been appointed by
the court, which he was not, his representation of appellant
would not have been "under color of state law." See Polk
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County v. Dodson, 454 U.S. 312, 325 (1981); Jackson v. Salon,
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614 F.2d 15, 16-17 (1st Cir. 1980). In this case, where
appellee was retained by appellant, appellee certainly did
not act under color of state law so as to invoke the Sixth
Amendment. See Oyegbola v. Murray, 791 F. Supp. 334 (D. Mass.
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1992) (dismissing Sixth Amendment claim in attorney
malpractice action on the grounds that "a court-appointed
attorney does not act under color of state law, so as to
invoke [the Sixth Amendment].").
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Although appellant also claims diversity
jurisdiction in his brief, this issue was not raised below.
Therefore, we will not address appellant's diversity claim
for the first time on appeal. See, e.g., Puleio v. Vose, 830
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F.2d 1197, 1202 (1st Cir. 1987), cert. denied, 485 U.S. 990
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(1988). The district court opinion dismissing this case for
lack of subject matter jurisdiction is affirmed.
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