*1 Bеfore MAGILL, MURPHY, Circuit Judges, and GOLDBERG, Judge. [1] [2]
___________
*2 GOLDBERG, Judge.
Michael R. McCall appeals from an order of the district court denying his request for appointment of counsel and dismissing his petition for habeas corpus. The district court denied McCall's request for appointment of counsel because it found that the case did not raise either factual or legal issues complex enough to warrant appointed counsel. The district cоurt denied McCall's habeas petition because it held that he was procedurally barred from obtaining relief. We affirm.
I.
McCall admitted that on January 22, 1994, he forced a woman into her nearby car, threatened to kill her, and attempted to rob her. McCall later entered into a plea agreement and was convicted of simple robbery and false imprisonment. Pursuant to the terms of the plea agreеment, McCall was sentenced to 83 months for the robbery conviction, and to 25 months, to be served concurrently, for the false imprisonment conviction. The robbery sentence reflects an upward depаrture from the Minnesota Sentencing Guidelines (“Guidelines”). The sentencing court highlighted the following factors as relevant to its decision to exceed the Guidelines: the injury to the victim; the confinement of the victim against her will; the threat to kill the victim; and a prior conviction involving injury to a victim.
McCall directly appealed his sentence, challenging it on two levels. First, he argued that the upward departure was unjustified becаuse the factors highlighted by the sentencing court were neither substantial nor compelling. Second, he argued that the concurrent sentence for false imprisonment violated Minnesota law because it arose out of a single behavioral incident. In an unpublished opinion, the Minnesota Court of Appeals affirmed the sentencing court, and the Minnesota Supreme Court denied his
petition for further review.
Pursuant to 28 U.S.C. § 2254, McCall then filed this pro se petition for a writ of habeas corpus in the United States District Court of Minnesota. In his petition, McCall claims that his sentence violates both his due process and Eighth Amendment rights. He also asked the court tо appoint counsel to represent him in the proceeding. Adopting the magistrate judge's report and recommendations, the district court denied McCall's request for appointment of counsel and dismissed his habeas petition, concluding that McCall had procedurally defaulted on his federal constitutional claims in state court when he failed to raise them on direct appeal.
McCall aрpeals. He argues that his case involves complex and non- frivolous claims that warrant court appointed counsel. He further argues that he fairly presented his federal constitutional claims to the state courts in his direct appeal, albeit somewhat opaquely. For the following reasons, we affirm the decision of the district court.
II.
McCall first argues that the district court erred when it denied his
motion for appointment of counsel. McCall contends that a court appointed
attorney is justified because his habeas petition raises complex legal and
factual issues that he is unable to еffectively develop without the
assistance of counsel. Yet, there is neither a constitutional nor
statutory right to counsel in habeas proceedings; instead, it is committed
to the discretion of the trial court. Pennsylvania v. Finley, 481 U.S.
551, 555-57 (1987); Williams v. Missouri, 640 F.2d 140, 144 (8th Cir.
1981). Thus, we review the district court's decision to deny McCall's
motion for abuse of discretion. Battle v. Armontrout,
This circuit has identified several factors to guide a district court
when it evaluatеs whether a petitioner needs court appointed counsel.
These include the factual and legal complexity of the case, and the
petitioner's ability both to investigate and to articulаte his claims
without court appointed counsel. Battle, 902 F.2d at 702; Johnson v.
Williams,
After considering these factors, we conclude that the district court did not abuse its discretion when it refused to appoint counsеl. The factual and legal issues raised by McCall's petition are not so complex and numerous that the appointment of counsel would benefit either McCall or the court: he has clearly demonstrated at least a threshold ability to articulate his claims, and is capable of self-representation in this matter.
McCall next argues that the district court wrongfully dismissed his
habeas petition without ruling on the merits of his federal constitutional
claims. Yet, a federal court may usually only consider “those claims which
the petitioner has presented to the state court in accordance with state
procedural rules.” Abdullah v. Groose,
Hence, before we may reach the merits of a habeas petition, we must
first determine whether the petitioner has fairly presented his federal
constitutional claims to the state court. Duncan v. Henry,
unless he can demonstrate either cause and actuаl prejudice, or that a
miscarriage of justice will occur if we do not review the merits of the
petition. Abdullah,
Instead, in his direct appeal, McCall challengеd his sentence solely on state law grounds: he argued only that the sentencing court misinterpreted Minnesota law when it applied the Guidelines. McCall admits that these claims were “phrased in the jargon of state law,” but argues that they were really “[f]ederal [c]onstitutional issues since the state laws are in essence restatements of the [f]ederal [c]onstitution in different words.” Appellant's Br. at 9-10.
We cannot agrеe. Mere similarity between the state law claims and
the federal habeas claims is insufficient: “If state courts are to be given
the opportunity to correct alleged violations of prisoners' fedеral rights,
they must surely be alerted to the fact that the prisoners are asserting
claims under the United States Constitution.” Henry,
Indeed, the very case that McCall contends supports his assertion
that his state law claims incorporate his federal habeas claims fails to
discuss, or to evеn refer to, the federal constitution. Appellant's Br.
at 9-10 (discussing State v. Krech,
claims to the Minnesota state court.
Because we conclude that McCall failed to fairly present his federal
habeas claims to the state court, we now address whether Minnesota state
law would prevent him from raising these claims in a state court. Smittie
v. Lockhart,
Thus, we cannot review his claims on their merits unless McCall is
able to demonstrate either cause for his default and actual prejudice, or
that the failure to consider his claims would result in a fundamental
miscarriage of justice. Coleman v. Thompson,
McCall has not offered an explanation for why he failed to raise his
federal constitutional claims in his direct appeal; instead, he asserts
thаt they were subsumed by his state law claims. Because this assertion
does not constitute cause, we do not consider whether McCall has
demonstrated prejudice. Leggins v. Lockhart,
The fundamental miscarriagе of justice exception is equally unavailing because
it is only available to a petitioner who demonstrates “that 'a
constitutional violation has probably resulted in the conviction of one whо
is actually innocent.” Brownlow v. Groose, 66 F.3d 997, 999 (8th Cir.
1995), cert. denied,
III.
For the foregoing reasons, we affirm the district court's denial of the petitioner's request for appointed counsel and it's dismissal of his habeas pеtition.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
Notes
[1] The Honorable Frank J. Magill, was an active judge at the time that this case was submitted and assumed senior status on April 1, 1997, before the opinion was filed.
[2] The Honorable Richard W. Goldberg, Judge, United States Court of International Trade, sitting by designation.
[3] The Honorable David S. Doty, United States District Judge for District of Minnesota.
[4] The Honorable Jonathan Lebedoff, United States Magistrate, United States District Court for the District of Minnesota.