(caption unavailable)

*Local Rule 47.5 provides: "The publicat ion of opinions that have no precedential value and
merely decide particular cases on the basis of well-settled principles of law imposes needless expense
on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-1100
Summary Calendar
Kenneth Burke,
Plaintiff-Appellant,
VERSUS
Debra Goodall,
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
3:93 CV 0023 X
( May 19, 1993)
Before THORNBERRY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
THORNBERRY, Circuit Judge*:
Pro se prisoner filed a civil rights action alleging constitutional violations involving ineffective
assistance of counsel and denial of his request to change counsel. The district court dismissed the
action as frivolous under 28 U.S.C. § 1915(d). For the following reasons we affirm the district
court's decision as modified.

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1 Burke alleges ineffect ive assistance of counsel. He also alleges a constitutional violation
occurred when the trial court refused to allow Burke to retain new counsel. These allegations
concern the fact or duration of Burke's confinement.
Facts and Prior Proceedings
Kenneth Burke, a prisoner proceeding pro se, filed a 42 U.S.C. § 1983 complaint against the trial
counsel who represented him in a criminal prosecution. The basis of the claim was ineffective
assistance of counsel and the denial of right to change counsel. The complaint was sent to the
magistrate for recommendations. The magistrate recommended dismissing Burke's § 1983 complaint
as frivolous under 28 U.S.C. § 1915(d), noting that the claim lacked an arguable basis in law because
defense attorneys in criminal prosecutions do not act under color of state law and therefore are not
subject to suit under § 1983. The magistrate also noted that Burke's allegations regarding ineffective
assistance of counsel called into question the legality of his state criminal conviction and therefore
Burke's complaint could be construed as a petition for federal habeas relief. The magistrate stated
that it did not appear that Burke's habeas complaint had ever been litigated, so he concluded that
Burke had failed to exhaust state remedies and could not presently maintain this action for federal
habeas relief. The district court adopted the magistrate's report and recommendation and dismissed
the complaint as frivolous pursuant to 28 U.S.C. § 1915(d). Burke timely appeals to this court.
Discussion
This Circuit bars co nsideration of claims under § 1983 that directly or indirectly challenge the
constitutionality of the prisoner's confinement without first exhausting state remedies, such as habeas
corpus. Serio v. Members of Louisiana State Board of Pardons, 821 F.2d 1112, 1117 (5th Cir.
1987). In the instant case, Burke has alleged constitutional claims that challenge the legality of his
confinement.1 As such, these claims must first be pursued through habeas corpus. Id. When a
prisoner brings a civil rights action before a habeas petition, the district court should dismiss the civil
rights action without prejudice and direct the plaintiff to promptly pursue habeas remedies.
Rodriguez v. Holmes, 963 F.2d 799, 804-05 (5th Cir. 1992). While the district court properly
construed Burke's complaint as a request for habeas corpus relief, the district court should have
dismissed the suit without prejudice for failure to exhaust state remedies and should have directed

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2 We do not remand this case to allow the district court to hold the suit in abeyance because the
Texas "rule of habeas abstention" forbids the state to consider a habeas motion while a similar motion
is "pending" in federal court. Rodriguez, 963 F.2d at 804. In addition, we note that the time during
which Burke pursues the available state remedies tolls the statute of limitations, thus allowing Burke
to return to federal court within the limitations period. Rodriguez, 963 F.2d at 804-05.
Burke to promptly pursue state remedies.
Finally, for the first time on appeal, Burke alleges a conspiracy between the state and his attorney.
An allegation that a private attorney conspired with immune state officials states a claim under §
1983. Richardson v. Gleming, 651 F.2d 366, 371 (5th Cir. 1981). Although Burke presents this
issue for the first time on appeal, we note that Burke was never given the opportunity to amend his
complaint in the district court or otherwise clarify his case at a Spears hearing before the complaint
was hastily dismissed. Therefore, our resolution of the case to direct Burke to undertake his state
remedies first, gives him the opportunity to bring the allegations of conspiracy properly under § 1983
after exhaustion of his state remedies.
Conclusion
Accordingly, we modify Burke's dismissal to reflect a dismissal without prejudice for failure to
exhaust state remedies.2

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