Quintero v. Hall

Filing 9

OPINION on Dismissal. (Signed by Judge Lynn N. Hughes) Parties notified. (rosaldana, 4)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

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JESUS RENE QUINTERO,

TDCJ 1458979,
Plaintiff,
versus
HEATHER HALL,

Defendant.

CIVIL ACTION H-13-3049

Opinion on Dismissal
Jesus Rene Quintero sues his appeal attorney, Heather Hall, for civil rights violations. 42
U.S.C. § 1983. He also raises state law claims. Quintero moves to proceed as a pauper. 28 U.S.C.
§ 1915. He claims violations of his right to counsel under the Fourteenth Amendment, his right of

access to the courts under the First Amendment, and his rights under the Texas Deceptive Trade
Practices Act.
Quintero raises these contentions. The trial judge in his criminal case appointed counsel to
pursue Quintero's appeal. Instead, counsel filed an "Anders brief' stating there were no arguable
errors. Quintero's brother hired Hall to review his trial records and she charged him $6,000. Hall
failed and refused to perform her contractual duty to represent Quintero in the appeal of his
conviction. Quintero was denied his rights of access to the courts, due process, and equal protection.
He seeks damages and general relief.
In a section 1983 case, a plaintiff must show that he has been deprived of a right under the
Constitution or laws of the United States by someone acting under color of state law. Baker v.
McCollan, 443 U.S. 137 (1979). An attorney representing a client does not act under color of state
law. Briscoe v. LaHue, 460 U.S. 325, 329 (1983). This court will not convert this complaint to a
habeas corpus application because there is no showing that Plaintiff has exhausted his state court
remedies. See Complaint, p. 1, ~ LA. Quintero fails to state a claim recognized at law.
Quintero's claims suffer from another problem. His allegations raise a claim of ineffective
assistance of appellate counsel. Quintero's claims of ineffective appellate assistance impugn the
validity of his criminal conviction. A civil rights claim which indirectly challenges the validity of

a conviction cannot proceed unless the conviction has been invalidated. Heck v. Humphrey, 512
U.S. 477,487 (1994). There is no showing Quintero's conviction has been overturned. Heck applies
to claims for injunctive relief that imply the invalidity of a conviction or sentence. Kutzner v.
Montgomery County, 303 F.3d 339, 340-41 (5th Cir. 2002). The holding in Heck bars Quintero's

claims and his requests for relief. Quintero fails to state a claim recognized at law under Heck. This
case will be dismissed.
The Texas Department of Criminal Justice will deduct 20% of each deposit made to the
Quintero's inmate trust account and pay this to the court on a regular basis, provided the account
exceeds $10, until the remainder of the filing fee, $350, is paid. The clerk will send a copy to the
Inmate Trust Fund, P.O. Box 629, Huntsville, Texas 77342-0629, fax [phone].
Signed

t1

O\{l.I"',J,..V

L(

,2013, at Houston, Texas.

-Lynn N. Hughes
United States District Judge