F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 23 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL J. FRISCHENMEYER,
Petitioner - Appellant, No. 98-3174
v. (D.C. No. 98-CV-3081)
NOLA FOULSTON and ATTORNEY (D. Kan.)
GENERAL OF KANSAS,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, McKAY, and LUCERO, Circuit Judges.
After examining Plaintiff-Appellant’s brief and the appellate record, this
panel has determined unanimously that oral argument would not materially assist
the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1.9. The case is therefore ordered submitted without oral argument.
Petitioner, a prisoner in Texas, proceeds pro se and in forma pauperis to
appeal the district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
petition. The petition arose out of Petitioner’s challenge to a Kansas detainer
lodged against him by Kansas authorities in 1995. Petitioner claimed that his due
process rights were violated because a Kansas state court denied his motion for a
speedy trial and his motion for reconsideration. The district court determined that
Petitioner’s failure to perfect a direct appeal from the state court decision 1 “was a
procedural default that [could not] be challenged under federal habeas review”
unless Petitioner showed cause and prejudice or “that a fundamental miscarriage
of justice [would] result if [his] claims [were] not considered.” R., Doc. 3 at 1-2
(Order filed Mar. 17, 1998). Because Petitioner alleged that he had no access to a
Kansas attorney or to Kansas legal materials, the district court determined that he
should be afforded an opportunity to demonstrate cause by showing that his lack
of knowledge was the result of “a lack of reasonable access to the rules as
distinguished from basic ignorance of the rules or the law.” Id. at 2 (citing Dulin
1
It is unclear from the record whether Petitioner ever filed a notice of
appeal from the state court decision denying his motion for a speedy trial and his
motion for reconsideration. In its Order filed March 17, 1998, the district court
stated that Petitioner “indicates that he filed no appeal” and that the time for
filing such an appeal has expired. R., Doc. 3 at 1. However, the same court
stated on April 24, 1998, that it was “unclear whether petitioner’s letter stating
his intent to appeal, sent to the Clerk of the Kansas Appellate Courts and
apparently forwarded to the clerk of the state district court, has been liberally
treated as Petitioner’s notice of appeal,” and that he “file[d] a timely notice of
appeal in the state district court.” Id., Doc. 6 at 2. Despite this ambiguity about
whether Petitioner filed an appeal in state court, the record clearly indicates that
he failed to perfect that appeal.
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v. Cook, 957 F.2d 758, 760 (10th Cir. 1992)). The court also invited Petitioner to
identify the prejudice sustained from his procedural default. See id. at 2 (citing
Watson v. New Mexico, 45 F.3d 385, 388 (10th Cir. 1995)). In short, the district
court ordered Petitioner to show cause why the petition should not be dismissed
for procedural default in the state courts.
After reviewing Petitioner’s response, the district court determined that the
section 2254 petition should be dismissed. The court stated that because the
detainer challenged by Petitioner was based on an unexecuted probation violation
warrant, it did not require a revocation hearing. Cf. Sinclair v. Henman, 986 F.2d
407, 410 (10th Cir.) (indicating that a parole revocation hearing is not required
unless parole violator warrant is validly executed), cert. denied, 510 U.S. 842
(1993). The court also rejected Petitioner’s attempt to show cause and prejudice
with respect to his procedural default, noting that he “is clearly able to present
himself to the courts, . . . his letters reflect a sufficient knowledge of the judicial
system,” and he “sought and obtained sufficient knowledge of Kansas appellate
rules to file a timely notice of appeal in the state district court.” R., Doc. 6 at 2
(Order filed Apr. 24, 1998). Consequently, the district court dismissed
Petitioner’s habeas corpus petition without prejudice for failure to exhaust his
state remedies. The court also denied Petitioner’s motion for reconsideration or
relief from judgment and denied him a certificate of appealability. Petitioner
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renews his application for a certificate of appealability to this court to appeal the
district court’s dismissal without prejudice of his habeas corpus petition.
To obtain a certificate of appealability, Petitioner must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Petitioner argues on appeal that the district court should have appointed him
counsel for his habeas corpus petition “to help [him] or at least provide [him]
with Kansas legal materials.” Appellant’s Br. at 3. He also states that his “fast
[and] speedy trial rights to a hearing” were denied because he had no lawyer and
no Kansas legal materials. Appellant’s Application for Certificate of
Appealability at 2. However, Petitioner acknowledges that the district court did
not apply the wrong law, and, as grounds for relief, he states only that he did “not
have access to Kansas or Pacific Reporter legal material.” Id. at 3. He requests
this court to appoint him legal counsel, provide him with Kansas legal materials,
order a revocation hearing or a probation violation hearing, or dismiss the warrant
and detainer for violations of the Speedy Trial Act.
To determine whether Petitioner has demonstrated cause and prejudice for
his procedural default, we must examine his arguments concerning appointment of
counsel and the right to counsel. Petitioner seems to argue that cause and
prejudice are established by the Kansas state court’s failure to appoint him
counsel so that he could properly appeal that court’s denial of his motion for a
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speedy trial. This argument is without merit for two reasons. First, Petitioner’s
response to the show cause order of the district court indicates that he was
represented by retained legal counsel from June 1992 through June 1997. 2 His
motion for a speedy trial and motion for reconsideration were filed during this
time period. Second, the constitutional right to appointed counsel only attaches in
prosecutions where an indigent litigant is actually deprived of his liberty. See
Scott v. Illinois, 440 U.S. 367, 373 (1979) (adopting actual imprisonment as “the
line defining the constitutional right to appointment of counsel”); accord Elliott v.
City of Wheat Ridge, 49 F.3d 1458, 1459 (10th Cir. 1995). In this case, it is not
clear from the record that Petitioner was indigent at the time he filed his motions
for a speedy trial and reconsideration. Moreover, his freedom was not at risk
because the warrant had not been executed and, therefore, there was no possibility
of imprisonment on the detainer. See Lassiter v. Department of Soc. Servs., 452
U.S. 18, 25 (1981) (affirming general principle that an indigent’s right to
appointed counsel exists “only where the litigant may lose his physical liberty if
he loses the litigation”). That Petitioner is incarcerated in Texas for other
2
Although Petitioner vaguely claims in his response to the district court’s
show cause order that his retained counsel’s representation violated his Sixth
Amendment right to effective assistance of counsel, he does not make or even
sufficiently support such a claim in this appeal. We therefore will not consider it
as a ground for a certificate of appealability. See O’Connor v. City & County of
Denver, 894 F.2d 1210, 1214 (10th Cir. 1990).
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offenses has no bearing on the right-to-counsel analysis for the unexecuted
Kansas detainer. Therefore, no constitutional right to counsel attached when
Petitioner moved for a speedy trial and for reconsideration.
Petitioner also argues that the district court’s failure to appoint counsel in
his habeas corpus proceeding constitutes cause and prejudice for the default in
state court. However, “[a] habeas petitioner is not entitled to appointed counsel
as an absolute right.” Plaskett v. Page, 439 F.2d 770, 771 (10th Cir. 1971); cf.
Johnson v. Avery, 393 U.S. 483, 488 (1969) (noting that courts have no general
obligation to appoint counsel for prisoners seeking post-conviction relief).
Moreover, nothing in the record indicates that Petitioner actually moved the
district court for the appointment of counsel. See McCarthy v. Weinberg, 753
F.2d 836, 838 (10th Cir. 1985) (stating that burden is on applicant to convince
court that there is sufficient merit to his claim to warrant the appointment of
counsel). Thus, we cannot say that the court abused its discretion in not
appointing counsel for the section 2254 habeas proceeding. See Capps v. Cowley,
63 F.3d 982, 986 (10th Cir. 1995) (noting that decision to appoint counsel on
habeas issues in federal court is committed to sound discretion of district court);
McCarthy, 735 F.2d at 839 (same). The failure of the district court to appoint a
lawyer to represent Petitioner in his section 2254 habeas corpus petition does not
constitute grounds for relief in this case.
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For these reasons, 3 and for substantially the same reasons set forth by the
district court in its Orders filed April 24 and May 27, 1998, we agree with the
district court that Petitioner has failed to establish either cause or prejudice for
his procedural default or that a fundamental miscarriage of justice will occur if
his claims are not heard. We therefore conclude that Petitioner has not made “a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Accordingly, we DENY Petitioner’s application for a certificate of
appealability and DISMISS this appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
3
We also note that we agree with the district court’s assessment that
Petitioner has not demonstrated any prejudice resulting from his noncompliance
with Kansas rules requiring typewritten or computer printed filings.
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