Maurice R. Dyer, Petitioner-appellant, v. Bert M. Rosenberg, Defendant-appellee, 434 F.2d 648 (9th Cir. 1970)

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U.S. Court of Appeals for the Ninth Circuit - 434 F.2d 648 (9th Cir. 1970) November 25, 1970

Maurice R. Dyer, in propria persona, for petitioner-appellant.

No appearance for defendant-appellee.

Before BROWNING, DUNIWAY and TRASK, Circuit Judges.


Dyer retained Rosenberg, an attorney, to defend him in a California criminal prosecution. Dyer was convicted and appealed. He alleges that his appeal was dismissed because Rosenberg failed to file an opening brief on appeal. The District Court dismissed for want of jurisdiction, and we affirm.

Dyer rests jurisdiction on 28 U.S.C. § 1343, which confers jurisdiction of actions for violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983. That section does not apply here. Rosenberg was not acting "under color of" state law. Kregger v. Posner, E.D. Mich. 1966, 248 F. Supp. 804, 806. See also Mulligan v. Schlachter, 6 Cir., 1968, 389 F.2d 231, 233, where the defendant had been the plaintiff's court-appointed counsel in the state case.