Don Karin Ward, Plaintiff-appellant, v. Richard D. Warren, Alfred Truitt, Jr., Hamilton Fox,defendants-appellees, 885 F.2d 867 (4th Cir. 1989)

Don Karin Ward appeals the district court's entry of judgment in favor of defendants in Ward's action filed under 42 U.S.C. § 1983, alleging that defense counsel, the prosecutor, and the judge at Ward's state criminal trial conspired to deny him due process. We affirm the judgment in favor of defendants.

The crux of Ward's complaint was that the state charged him with having committed a sexual offense against a minor in Parsonsburg, Maryland, but tried him for having committed such an offense in Fruitland, Maryland. Ward claimed that his attorney failed to impeach the state's witnesses with their prior statements regarding where the offense occurred and was ineffective in other respects as well. He claimed that the prosecutor had the witnesses perjure themselves and contradict their prior statements in order that their testimony would coincide with school records concerning where the minor lived at the time of the offense. Finally, Ward claimed that his trial counsel and the prosecutor conspired to alter the transcript to conceal the perjury and thereby interfere with Ward's efforts to have his conviction set aside.¹ 

As noted by the district court, Ward's claims relating to the conduct of his trial are properly brought under 28 U.S.C. § 2254 after exhaustion of state remedies. Hamlin v. Warren, 664 F.2d 29 (4th Cir. 1981), cert. denied, 455 U.S. 911 (1982). Moreover, although a viable Sec. 1983 damage claim should be stayed on the federal docket pending exhaustion if it would otherwise be time barred, Hamlin, supra, at 32, Ward did not present viable damage claims against these defendants.²  As the district court held, the judge and prosecutor enjoy absolute immunity from damage liability for their actions at trial. Stump v. Sparkman, 435 U.S. 349 (1978); Imbler v. Pachtman, 424 U.S. 409 (1976). In addition, Ward's court-appointed trial attorney is not a state actor, and so not amenable to suit under 42 U.S.C. § 1983, Hall v. Quillen, 631 F.2d 1154 (4th Cir. 1980), cert. denied, 454 U.S. 1141 (1982), unless he has subjected himself to liability by virtue of conspiring with state officials. Tower v. Glover, 467 U.S. 914 (1984). Defense counsel denied such conduct in his affidavit, and Ward's conclusory assertions are insufficient to overcome counsel's sworn denial. See Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984).

Relief was also properly denied on Ward's claim that the transcript was altered. We agree with the district court's determination that the sections of the transcript relied upon by Ward in support of this claim do not indicate that the transcript has been altered or fabricated.³  Moreover, Ward conceded in his complaint that the alleged alterations did not affect his grounds for challenging his conviction. Under these circumstances, Ward has failed to show any violation of his due process rights.

We accordingly affirm the judgment of the district court. We dispense with oral argument because the dispositive issues recently have been decided authoritatively.

AFFIRMED.