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No. 95-3486
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David Thrasher, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
State of Missouri, *
* [UNPUBLISHED]
Appellee. *
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Submitted: November 26, 1996
Filed: December 12, 1996
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Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
David Thrasher, a Missouri inmate, appeals from the district
court's1 denial of his 28 U.S.C. § 2254 petition as procedurally
barred. Thrasher argues the district court erred by denying his
petition without an evidentiary hearing and by failing to appoint
counsel sua sponte.
Thrasher has not alleged cause and prejudice or actual
innocence to excuse his default. See Coleman v. Thompson, 501 U.S.
722, 750 (1991). His general allegations of ineffective assistance
of counsel do not constitute cause as they are not the same as the
1
The Honorable Edward L. Filippine, United States District
Judge for the Eastern District of Missouri, adopting the report and
recommendations of the Honorable Frederick R. Buckles, United
States Magistrate Judge for the Eastern District of Missouri.
allegations of ineffectiveness he raised in state postconviction
proceedings. See McKinnon v. Lockhart, 921 F.2d 830, 832 (8th Cir.
1990) (per curiam) (claim of ineffective assistance of appellate
counsel may be used to establish cause for procedural default only
if first presented to state courts as independent Sixth Amendment
claim), cert. denied, 501 U.S. 1208 (1991). Therefore, Thrasher
was not entitled to an evidentiary hearing. See Wilson v. Kemna,
12 F.3d 145, 146 (8th Cir. 1994) (no entitlement to evidentiary
hearing in habeas proceeding where record clearly indicates
petitioner's claims are procedurally barred). We conclude the
district court did not abuse its discretion by not appointing
counsel sua sponte. See Smith v. Groose, 998 F.2d 1439, 1442 (8th
Cir. 1993).
Accordingly, the judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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