HLD-107(February 2011)                                      NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                                  No. 10-4406
                                  ___________

                          JOSE FREMONDE XENOS,
                                           Appellant
                                   v.

                            NURIA SLOJUND
                  ____________________________________

                On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                          (D.C. Civil No. 10-cv-04854)
                District Judge: Honorable James Knoll Gardner
                 ____________________________________

               Submitted for Possible Summary Action Pursuant to
                    Third Circuit LAR 27.4 and I.O.P. 10.6
                               February 28, 2011
       Before: McKEE, Chief Judge, ALDISERT and WEIS, Circuit Judges

                         (Opinion filed : April 18, 2011)
                                   _________

                                   OPINION
                                   _________


PER CURIAM.
               Pro se appellant, Jose Fremonde Xenos, filed the underlying action

pursuant to 42 U.S.C. § 1983 against Nuria Slojund, Esq., his court-appointed appellate

attorney. Xenos complained about Slojund’s actions during the course of his appeal from

a state criminal proceeding which apparently ended adversely to him. The District Court

dismissed Xenos’ complaint sua sponte for lack of legal merit in accordance with 28

U.S.C. § 1915(e). For the reasons provided by the District Court, we agree and will

affirm.

               As the District Court explained, a defense attorney “does not act under

color of state law when performing a lawyer’s traditional functions as counsel in a

criminal proceeding.” Polk County v. Dodson, 

, 325 (1981). Because the

complaint contains no allegations to suggest that Slojund is a state actor properly sued

under § 1983, we conclude that the District Court did not err in dismissing Xenos’

complaint. 1 Accordingly, we will summarily affirm the judgment of the District Court as

no substantial question is presented by this appeal. See Third Circuit LAR 27.4 and

I.O.P. 10.6.




1
 Any attack on the criminal proceeding itself or the sentence ultimately imposed falls
within the purview of 28 U.S.C. § 2254, not an action filed under 42 U.S.C. § 1983.
                                             2