Can a civil rights action be brought against a publicly appointed criminal defense attorney for actions she took in performing her traditional functions as counsel in a criminal proceeding?

Plaintiff alleges that his appellate counsel did not adequately represent him on appeal. Allegations of deficient performance by counsel in state criminal proceedings are cognizable only in a habeas action properly filed under 28 U.S.C. 2254. No civil rights action can lie against a publicly appointed criminal defense attorney for actions she took in performing a lawyer's traditional functions as counsel in a criminal proceeding. See Polk County v. Dodson, 454 U.S. 312, 325 (1981).

If a complaint filed under the Civil Rights Act states claims that sound in habeas, the court should not convert the complaint into a habeas petition. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995); Craver v. Franco, No. CIV S-07-0428 RRB-CMK-P, 2008 WL 191056 at *3 (E.D. Cal. Jan. 22, 2008). The proper course, instead, is to dismiss the claims without prejudice to plaintiff's right to reassert them in a habeas petition. Id.