Bustamante v. Moran

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-51126
Conference Calendar
JOE MARTINEZ BUSTAMANTE, JR.,
Plaintiff-Appellant,
versus
PATRICK B. MORAN,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-99-CV-994-HG
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June 15, 2000
Before JOLLY, DAVIS, and DUHÉ, Circuit Judges.
PER CURIAM:*
Joe Martinez Bustamante, Jr., appeals the district court’s
dismissal of this civil action for lack of subject-matter
jurisdiction. Bustamante sued his former court-appointed
attorney, alleging malpractice, negligence, and intentional
infliction of emotional distress. He argues that the district
court’s dismissal was error because he sought in excess of
$75,000, the jurisdictional amount required to invoke diversity
jurisdiction; he alternatively argues that his claims presented a
federal question.

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No. 99-51126
-2-
Bustamante has not demonstrated any error on the district
court’s part. Diversity jurisdiction does not exist because both
he and Moran are residents of Texas, and his state-law tort
claims do not implicate a federal question. See 28 U.S.C.
§§ 1331 and 1332. His argument that federal-question
jurisdiction existed because his claims arose out of counsel’s
ineffective assistance, in violation of the Sixth Amendment, is
facially without merit. Accordingly, the district court did not
err in sua sponte dismissing the lawsuit. See Fed. R. Civ. P.
12(h)(3). The instant appeal is frivolous and is therefore
DISMISSED. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983); 5TH CIR. R. 42.2.
APPEAL DISMISSED.

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