The Honorable Frank J. Magill, was an active judge at the time that this case was 1

submitted and assumed senior status on April 1, 1997, before the opinion was filed. 

The Honorable Richard W. Goldberg, Judge, United States Court of International Trade, 2

sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-3366

___________

Michael McCall, *

*

Plaintiff/Appellant *

*

v. * Appea

l

from

the

Unite

d

State

s

* District Court for the

Dennis Benson, Warden, * District of Minnesota.

*

Defendant/Appellee. * 

*

*

___________

 Submitted: March

14,

1997 

 Filed: May 30, 1997

___________

Before MAGILL, MURPHY, Circuit Judges, and GOLDBERG, Judge. 1 2

___________
The Honorable David S. Doty, United States District Judge for District of Minnesota. 3

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GOLDBERG, Judge.

 

Michael R. McCall appeals from an order of the district court3

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 court 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 agreement, 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 departure 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 because 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 
The Honorable Jonathan Lebedoff, United States Magistrate, United States District Court 4

for the District of Minnesota.

-3-

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 to

appoint counsel to represent him in the proceeding. Adopting the

magistrate judge's report and recommendations, the district court denied 4

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 appeals. He argues that his case involves complex and nonfrivolous 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 effectively 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, 902 F.2d 701, 702

(8th Cir. 1990) (citation omitted).
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This circuit has identified several factors to guide a district court

when it evaluates 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 articulate his claims

without court appointed counsel. Battle, 902 F.2d at 702; Johnson v.

Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986) (citations omitted).

After considering these factors, we conclude that the district court

did not abuse its discretion when it refused to appoint counsel. 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, 75 F.3d 408, 411 (8th Cir. 1996),

cert. denied, 116 S. Ct. 1838 (1996) (quoting Satter v. Leapley, 977 F.2d

1259, 1261 (8th Cir. 1992)). 

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, 513 U.S. 364,

365-66 (1995) (per curium). When the petitioner has failed to do so, we

must then determine whether the petitioner has complied with state

procedural rules governing post-conviction proceedings, i.e., whether a

state court would accord the petitioner a hearing on the merits. Harris

v. Reed, 489 U.S. 255, 268-70 (O'Connor, J., concurring); Satter, 977 F.2d

at 1262. If state procedural rules prevent the petitioner from obtaining

such a hearing, then the petitioner is also procedurally barred from

obtaining habeas relief in a federal court 
-5-

unless he can demonstrate either cause and actual prejudice, or that a

miscarriage of justice will occur if we do not review the merits of the

petition. Abdullah, 75 F.3d at 412-13 (citing Satter, 977 F.2d at 1262).

In order to fairly present a federal claim to the state courts, the

petitioner must have referred to “'a specific federal constitutional right,

a particular constitutional provision, a federal constitutional case, or

a state case raising a pertinent federal constitutional issue' in a claim

before the state courts.” Myre v. State of Iowa, 53 F.3d 199, 200-01 (8th

Cir. 1995) (quoting Kelley v. Trickey, 844 F.2d 557, 558 (8th Cir. 1988)).

McCall's direct appeal failed to refer to any of the above.

Instead, in his direct appeal, McCall challenged 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 agree. 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' federal rights,

they must surely be alerted to the fact that the prisoners are asserting

claims under the United States Constitution.” Henry, 513 U.S. at 365-66.

Here, nothing that McCall submitted to the Minnesota Court of Appeals

would, in any way, alert it to the constitutional claims that he now

asserts. 

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 even refer to, the federal constitution. Appellant's Br.

at 9-10 (discussing State v. Krech, 312 Minn. 461, 252 N.W.2d 269 (1977));

see Krech, 312 Minn. at 464-68, 252 N.W.2d at 272-73 (discussing the

purpose of the Guidelines using only state precedent). Accordingly, we

believe that McCall failed to fairly present his due process and Eighth

Amendment 
-6-

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, 843 F.2d 295, 296 (8th Cir. 1988). The district court found

that under state law, McCall waived his federal constitutional claims

because he failed to raise them on direct appeal. We agree. Minnesota law

provides that once the petitioner has directly appealed his sentence “all

matters raised therein, and all claims known but not raised, will not be

considered upon a subsequent petition for postconviction relief.” State

v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976); Roby v. State,

531 N.W.2d 482, 484 (Minn. 1995). There is no evidence that McCall's

habeas claims were unknown, or so novel that their legal basis was unknown,

at the time of his direct appeal. Hence, we conclude that McCall has

defaulted on these claims because he failed to pursue them on direct

appeal. Id.; see also Dent v. State, 441 N.W.2d 497, 499 (Minn. 1989); Fox

v. State, 474 N.W.2d 821, 824 (Minn. 1991).

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, 501 U.S. 722, 750 (1991);

Abdullah, 75 F.3d at 412-13 (citing Satter, 977 F.2d at 1262). Neither

exception is available to McCall.

McCall has not offered an explanation for why he failed to raise his

federal constitutional claims in his direct appeal; instead, he asserts

that 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, 822 F.2d 764, 768 (8th Cir.

1987) (citation omitted).

The fundamental miscarriage of justice exception is equally

unavailing because 
-7-

it is only available to a petitioner who demonstrates “that 'a

constitutional violation has probably resulted in the conviction of one who

is actually innocent.” Brownlow v. Groose, 66 F.3d 997, 999 (8th Cir.

1995), cert. denied, 116 S. Ct. 1049 (1996) (quoting Schlup v. Delo, 513

U.S. 298, 327 (1995)). McCall has not even attempted to show that he was

actually innocent of simple robbery and false imprisonment. Moreover, in

light of his guilty plea, such an attempt would be unpersuasive.

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 petition.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.