
USCA1 Opinion

	




          June 14, 1993         [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE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                                 ___________________                                 ___________________          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.                                  __________________                                  __________________                     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]                                             ___________________                                 ___________________                                 ___________________                                        Before                                        Before                              Torruella, Cyr and Boudin,                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   Circuit Judges.                                   ______________                                 ___________________                                 ___________________               Samson O. Agbosasa on brief pro se.               Samson O. Agbosasa on brief pro se.               __________________               Scott A. Lutes on brief for appellee.               Scott A. Lutes on brief for appellee.               ______________                                  __________________                                  __________________                                  __________________                                  __________________                                         -2-                                         -2-                      Per  Curiam.    This is  a  pro  se  appeal from  a                      Per  Curiam.                          ___________                 ___  __            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                                         -3-                                         -3-            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                                                                 ___ ____            County v. Dodson, 454 U.S. 312, 325 (1981); Jackson v. Salon,            ______    ______                            _______    _____            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.                       ___ ________    ______            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].").                                         -4-                                         -4-                      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                                           ___  ____  ______    ____            F.2d 1197, 1202 (1st  Cir. 1987), cert. denied, 485  U.S. 990                                              ____  ______            (1988).  The district court opinion dismissing this  case for            lack of subject matter jurisdiction is affirmed.                                                   ________                                         -5-                                         -5-
