USCA11 Case: 21-10597 Date Filed: 02/08/2022 Page: 1 of 13

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-10597 Non-Argument Calendar ____________________

ELBERT WALKER, JR., Plaintiff-Counter Defendant-Appellant, versus GERALD BERNARD WILLIAMS,

Defendant-Counter Claimant-Appellee.

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Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 1:20-cv-00099-LAG ____________________ USCA11 Case: 21-10597 Date Filed: 02/08/2022 Page: 2 of 13

2 Opinion of the Court 21-10597

Before NEWSOM, GRANT, and JULIE CARNES, Circuit Judges. PER CURIAM: Plaintiff Elbert Walker filed this action against his former criminal defense attorney, Defendant Gerald Williams, asserting a § 1983 claim and various state law claims arising from Defend- ant’s alleged ineffective assistance of counsel. The district court dismissed Plaintiff’s § 1983 claim under Federal Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Having dismissed Plaintiff’s only federal claim, the district court declined to exercise supplemental jurisdiction over Plaintiff’s remaining state claims and dismissed those claims without prejudice. Plain- tiff appeals both rulings. We find no error and thus AFFIRM. In conjunction with his appeal, Plaintiff submitted a Mo- tion for Untimely Reply to the Opposition Brief, which we con- strued as a Motion for Leave to File a Reply Brief Out of Time. We GRANT Plaintiff’s motion, and we have considered his reply brief in ruling on this appeal. BACKGROUND Plaintiff and two co-defendants were charged in 2012 with one count of conspiracy to commit multiple objects, including ar- son, bank fraud, wire fraud, mail fraud, bankruptcy fraud, posses- sion of a forged security, and making false declarations in court in violation of 18 U.S.C. § 371. See United States v. Walker, 758 F. App’x 868, 869 (11th Cir. 2019). Plaintiff was also charged sepa- USCA11 Case: 21-10597 Date Filed: 02/08/2022 Page: 3 of 13

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rately with two counts of being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and one count of possessing a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k). See id. The conspiracy charges were based on evidence of a scheme perpetrated by Plaintiff and his co- defendants that involved acquiring various properties, transfer- ring the properties among each other, setting fire to the proper- ties, and then making fraudulent insurance claims to collect mon- ey for the fire losses. See id. The firearms charges were based on evidence that law enforcement agents found multiple guns, in- cluding a shotgun with an obliterated serial number, when they searched Plaintiff’s home in connection with the alleged conspira- cy, and the fact that Plaintiff had a prior New Jersey conviction for welfare fraud that initially resulted in a two-year sentence. See id. at 871. Plaintiff and his co-defendants elected to have the charges against them tried before a jury, and Defendant Gerald Williams was appointed to represent Plaintiff at trial. See id. at 869. After a three-week trial, Plaintiff and his co-defendants were convicted of the conspiracy charge, and Plaintiff was also convicted of the fire- arms charges. See id. at 871. Plaintiff was sentenced to concurrent prison terms of 121 months for the conspiracy, 120 months for each of the § 922(g) firearm offenses, and 60 months for possession of a firearm with an obliterated serial number. See id. With the assistance of a different defense attorney, Plaintiff appealed his conviction and sentence to this Court, arguing that USCA11 Case: 21-10597 Date Filed: 02/08/2022 Page: 4 of 13

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the district court erred by denying his motion for judgment of ac- quittal on the conspiracy charge and that he was entitled to a new trial because of prosecutorial misconduct. See id. at 868. This Court affirmed Plaintiff’s conviction and sentence in February 2019. See id. at 874. Plaintiff subsequently filed this pro se complaint against Defendant, asserting for the first time that Defendant had provid- ed ineffective assistance during his criminal trial. In his com- plaint, Plaintiff asserted a § 1983 claim against Defendant to re- cover for Fifth and Sixth Amendment violations allegedly arising from the ineffective assistance—specifically, from Defendant’s failure to investigate the case, make relevant objections, and properly subpoena or cross-examine witnesses at trial. According to Plaintiff, Defendant’s failures at trial caused him to incur a ten- year sentence in federal prison and resulted in other financial and emotional harm to Plaintiff. In his Answer, Defendant denied Plaintiff’s substantive al- legations regarding ineffective assistance of counsel, argued that he did not act under color of law while representing Plaintiff at trial as required for Plaintiff to prevail on his § 1983 claim, and as- serted defenses based on failure of service and the statute of limi- tations. 1 In conjunction with his Answer, Defendant filed a mo-

1 Defendant also asserted a state law counterclaim, in which he alleged that Plaintiff’s complaint was frivolous and sought to recover the expenses of liti- gating the action. The district court dismissed the counterclaim, and De- fendant has not challenged that ruling on appeal. USCA11 Case: 21-10597 Date Filed: 02/08/2022 Page: 5 of 13

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tion to dismiss Plaintiff’s complaint pursuant to Federal Rule 12(b)(6) for failure to state a cognizable claim. In support of the motion, Defendant argued that he had not been properly served, that Plaintiff’s federal and state claims were barred by the statute of limitations, that he did not act under color of law when he rep- resented Plaintiff as required for Plaintiff to prevail on his § 1983 claim, and that Plaintiff’s complaint did not state a claim for re- covery under state law. The district court granted Defendant’s motion to dismiss. As to Plaintiff’s federal claim, the court noted that § 1983 only provides relief against an official acting under color of law, and that a court-appointed attorney does not act under color of law for purposes of § 1983. See Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (“[A] public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.”). All of Plaintiff’s allega- tions, the court explained, revolved around case-related strategic decisions made by Defendant in the course of his representation of Plaintiff. As such, the court held, Plaintiff’s complaint did not state a claim for relief under § 1983. Having dismissed Plaintiff’s federal claim, the court declined to exercise supplemental jurisdic- tion over his remaining state claims and dismissed those claims without prejudice pursuant to 28 U.S.C. § 1367(c)(3). The district court acknowledged in its order that a pro se plaintiff should be given an opportunity to amend before dismiss- ing his complaint with prejudice when it appears that the com- USCA11 Case: 21-10597 Date Filed: 02/08/2022 Page: 6 of 13

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plaint “if more carefully drafted, might state a claim.” But the court held that dismissal of Plaintiff’s § 1983 claim with prejudice was appropriate here, given that Defendant did not act under col- or of law while representing Plaintiff and thus could not be liable under § 1983 for his alleged ineffective representation. Neverthe- less, the court denied Defendant’s request to sanction Plaintiff under Rule 11, emphasizing Plaintiff’s pro se status and the fact that the court could not evaluate the merit of his state claims, having declined to exercise jurisdiction over those claims. Plaintiff appeals, identifying as issues for appeal whether Defendant deprived Plaintiff of various constitutional rights by failing to investigate his criminal case, make relevant arguments and objections at Plaintiff’s trial, and subpoena witnesses to testify at trial. In support of his appeal, Plaintiff argues, as he argued be- low, that Defendant’s ineffective assistance during his criminal trial deprived him of various federal constitutional rights and caused him to suffer emotional distress for which he can recover under state law. Plaintiff does not address in his appellate briefing the district court’s rationale for dismissing his § 1983 claim—that is, that Defendant was not acting under color of law while repre- senting Plaintiff in his criminal trial, and thus cannot be liable un- der § 1983 for any errors he made during the representation. Plaintiff also does not discuss in his brief the district court’s deci- sion to decline supplemental jurisdiction over his remaining state law claims. USCA11 Case: 21-10597 Date Filed: 02/08/2022 Page: 7 of 13

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DISCUSSION I. Plaintiff’s Section 1983 Claim We review the district court’s order dismissing Plaintiff’s § 1983 claim under Federal Rule 12(b)(6) de novo, accepting the allegations in the complaint as true and construing them in the light most favorable to Plaintiff. Tolar v. Bradley Arant Boult Commings, LLP, 997 F.3d 1280, 1299 (11th Cir. 2021). A com- plaint is subject to dismissal under Rule 12(b)(6) if it does not “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. at 1299–1300 (quot- ing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted)). “A claim is facially plausible when it is supported by facts that permit a reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1300 (quotation marks omit- ted). This Court construes a pro se litigant’s pleadings liberally, and we hold such pleadings to a less stringent standard than pleadings drafted by an attorney. See United States v. Cordero, 7 F.4t h 1058, 1068 n.11 (11th Cir. 2021) (noting that “pro se plead- ings are liberally construed”). However, the Court “may not serve as de facto counsel” for a pro se litigant or “rewrite” a defi- cient pleading. See id. Like any complainant, a pro se plaintiff must include in his complaint enough factual allegations that “raise a right to relief above the speculative level” to survive a Rule 12(b)(6) motion to dismiss. See Saunders v. Duke, 766 F.3d 1262, 1266 (11th Cir. 2014) (quotation marks omitted). USCA11 Case: 21-10597 Date Filed: 02/08/2022 Page: 8 of 13

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The only federal right to relief Plaintiff asserts in his com- plaint is a claim under 42 U.S.C. § 1983. Section 1983 creates a private cause of action that allows a plaintiff to recover for the deprivation of a federal right by a person acting under color of state law. See Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1276–77 (11th Cir. 2003) (citing § 1983 and noting that the provision allows recovery where a plaintiff can show he was “deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law”). To prevail on a claim un- der § 1983, Plaintiff must show both that (1) Defendant deprived him of a right secured by the United States Constitution or federal law and (2) “the alleged deprivation was committed under color of state law.” Id. As noted above, the district court granted De- fendant’s motion to dismiss Plaintiff’s § 1983 claim because all of Plaintiff’s allegations involve Defendant’s alleged malpractice while representing Plaintiff as court-appointed defense counsel during Plaintiff’s criminal trial, and the Supreme Court held years ago that court-appointed counsel “does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Dodson, 454 U.S. at 325. As an initial matter, Plaintiff has abandoned on appeal any challenge to the dismissal of his § 1983 claim on the ground that he cannot satisfy the color of state law requirement because he failed to address that issue in his appellate briefing. See Timson v. USCA11 Case: 21-10597 Date Filed: 02/08/2022 Page: 9 of 13

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Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (“While we read briefs filed by pro se litigants liberally, issues not briefed on appeal by a pro se litigant are deemed abandoned.” (citations omitted)). In his opening brief, Plaintiff identifies as issues for appeal wheth- er Defendant violated his federal Due Process and other constitu- tional rights by committing various errors while representing Plaintiff during his criminal trial. Never once in his brief does Plaintiff argue that Defendant can be liable for the alleged errors under § 1983 because he was acting under color of state law when he committed them.2 Because Plaintiff has abandoned any argu- ment that he can satisfy the color of state law requirement, we affirm the district court’s order dismissing his § 1983 claim. See id. (holding that a pro se plaintiff had abandoned an issue by fail- ing to address it in his opening brief).

2 Had Plaintiff attempted to raise the color of law issue in his reply brief, which we have considered despite its untimely filing, it would have been too late to preserve the issue for appeal. See Timson, 518 F.3d at 874 (“[W]e do not address arguments raised for the first time in a pro se litigant’s reply brief.”). But we note that Plaintiff’s reply brief for the most part just rehash- es the arguments made in his opening brief. Plaintiff argues in his reply brief that he was not a convicted felon when he was charged with the § 922(g) of- fense in this case, that the Government fabricated evidence in his criminal trial, and that Defendant failed to investigate, make objections, and subpoena or cross-examine witnesses at trial. Plaintiff does not squarely address in his reply brief the district court’s reason for dismissing his § 1983 claim: that De- fendant did not act under color of law while representing Plaintiff and thus cannot be held liable under § 1983 for his alleged errors during the represen- tation. USCA11 Case: 21-10597 Date Filed: 02/08/2022 Page: 10 of 13

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We note also that the district court did not err on the mer- its by dismissing Plaintiff’s § 1983 claim on this ground, because the allegations in Plaintiff’s complaint do not support a rational inference that Defendant acted under color of state law when he represented Plaintiff in his criminal trial and they do not suggest any other plausible basis for holding Defendant liable under § 1983. However, we do clarify one point that neither party has addressed. Plaintiff was indicted on federal charges and tried in federal court, and it appears from the record that Defendant was appointed to represent Plaintiff by the federal district court in the Middle District of Georgia. Plaintiff’s claim for constitutional er- ror presumably would thus arise, if at all, under Bivens v. Six Un- known Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), rather than § 1983. See Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 66 (2001) (noting that Bivens recognized “an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights”). The difference be- tween the two claims is that Plaintiff would have to show that Defendant was acting under color of federal—as opposed to state—law to prevail under Bivens. See Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995) (“The effect of Bivens was, in essence, to create a remedy against federal officers, acting under color of federal law, that was analogous to the section 1983 action against state officials.” (citation and quotation marks omitted)). Nevertheless, and pursuant to the above discussion, Plain- tiff has abandoned any argument that Defendant acted under col- USCA11 Case: 21-10597 Date Filed: 02/08/2022 Page: 11 of 13

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or of either state or federal law by failing to address the issue in his appellate briefing. Furthermore, we see no reason why the Supreme Court’s holding in Dodson—that a court-appointed at- torney representing a defendant in state court does not act under color of state law—should not apply equally to a court-appointed attorney representing a defendant in federal court. The Court reasoned in Dodson that a court-appointed attorney representing a criminal defendant in state court does not act under color of state law because he “works under canons of professional respon- sibility that mandate his exercise of independent judgment on be- half of the client.” See Dodson, 454 U.S. at 321. That rationale holds true for a court-appointed attorney representing a defend- ant in federal court, meaning that Defendant did not act under color of state or federal law while representing Plaintiff and thus cannot be held liable under either § 1983 or Bivens. We make this point only to clarify that any claim Plaintiff might have asserted under Bivens, but failed to assert possibly because of his pro se status, would be subject to dismissal under Federal Rule 12(b)(6) for the same reason that his § 1983 claim was dismissed. See id. Finally, we agree with the district court that amendment to Plaintiff’s complaint would be futile. See Coventry First, LLC v. McCarty, 605 F.3d 865, 870 (11th Cir. 2010) (“A proposed amendment may be denied for futility when the complaint as amended would still be properly dismissed.” (quotation marks omitted)). Again, Plaintiff’s allegations are all based on malprac- tice allegedly committed by Defendant while representing Plain- USCA11 Case: 21-10597 Date Filed: 02/08/2022 Page: 12 of 13

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tiff as a court-appointed attorney during Plaintiff’s criminal trial. Pursuant to Dodson, there is no basis for holding Defendant liable under federal law for the alleged malpractice. See Dodson, 454 U.S. at 325. Thus, the district court did not err when it dismissed Plaintiff’s § 1983 claim with prejudice. II. Plaintiff’s State Law Claims Having dismissed Plaintiff’s only federal claim, the district court declined to exercise supplemental jurisdiction over Plain- tiff’s remaining state claims and dismissed those claims without prejudice. Again, Plaintiff abandoned this issue by failing to ad- dress it in his opening brief. See Timson, 518 F.3d at 874. Even if Plaintiff had raised the dismissal of his state claims as an issue, we discern no error. A federal district court “may de- cline to exercise supplemental jurisdiction” over pending state law claims once the court “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). After the dismissal of Plaintiff’s § 1983 claim, there remained no pending claim over which the district court had original jurisdiction. At that point, the court had discretion to dismiss Plaintiff’s state claims, and it followed this Court’s guidance in choosing to do so. See Woods v. Comm’r, Ala. Dep’t of Corr., 951 F.3d 1288, 1295 (11th Cir. 2020) (noting that the decision to exercise supplemental jurisdic- tion over state claims once federal claims have been dismissed is within the district court’s discretion, and that this Court has en- couraged dismissal of state claims following the dismissal of a plaintiff’s federal claims). USCA11 Case: 21-10597 Date Filed: 02/08/2022 Page: 13 of 13

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CONCLUSION For the foregoing reasons, we construe Plaintiff’s Motion for Untimely Reply as a Motion for Leave to File a Reply Out of Time and we GRANT that motion. Having carefully reviewed the record and the arguments of the parties on appeal, we AFFIRM the district court’s order dismissing Plaintiff’s complaint.