Jonathan Smith, Plaintiff-appellant, v. United States of America; Mar Karro, Marshall; Unknownagents, Defendants-appellees, 801 F.2d 395 (4th Cir. 1986)

Jonathan Smith filed this civil rights suit alleging that his attorney below deprived him of numerous constitutional rights by ineffectively representing him. In addition, Smith alleges that the court improperly accepted his guilty plea because he could not remember participating in the crime. The district court dismissed the suit for failure to state a claim.

We agree that Smith's allegations fail to state a claim under 42 U.S.C. § 1983. An attorney appointed by a federal court does not act under "color of state law" for purposes of Sec. 1983. A judge is immune from suit for damages unless the acts are taken in "clear absence of all jurisdiction." Stump v. Sparkman, 435 U.S. 349 (1978). Thus, the district court properly dismissed those claims.

Smith's claim that his guilty plea was not knowingly and intelligently entered may state a valid claim pursuant to 28 U.S.C. § 2255. However, when Smith filed this Sec. 1983 suit, the direct appeal of his conviction was pending before this court. United States v. Johnson, No. 85-5205 (4th Cir., June 17, 1986) (unpublished). A motion to vacate a sentence will not be heard while a direct appeal is proceeding absent special circumstances. Bowen v. Johnston, 306 U.S. 19, 26-27 (1939). Thus, the district court properly declined to consider the claim. Now that the direct appeal is final, Smith may file his motion to vacate sentence if he so desires. The dispositive issues have recently been authoritatively decided, so we dispense with oral argument and affirm the judgment of the district court.

AFFIRMED