### 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


## -2- GOLDBERG, Judge.

Michael R. McCall appeals from an order of the district court 3 denying his request for appointment of counsel a nd dismissing his petition for habe as corpus. The district court denied McCall's request fo r appointment of counsel because it found that the case did not raise either factual or legal issu es complex enough to warrant appointed counsel. The district court denied McCall's habeas petition b ecause 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 late r entered into a plea agreement and was convicted of simple robbery and fals e impri sonment. Pursuant to the terms of the plea agreement, McCall wa s sentenced to 83 months for the robbery convictio n, and to 25 months, to be served concurrently, for the false imprisonment conviction. The robbery sente nce reflects an upward departure from the Minnesota Sentencin g Guidelines (“Guidelines”). The sentencing court highlighted the following factors as relevant to its decision to exceed the Guidelines: the injury to the victim; the co nfinement 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 sentenc e, challenging it on two levels. First, he argued that the upward departure was unjustified because th e factors highlighted by the sentencing court were neither substantial nor compell ing. Second, he argued that the concurrent sentence for fals e impr isonment violated Minnesota law because it arose out of a singl e beh avioral incident. In an unpublished opinion, the Minnesota Court o f Appeal s affirmed the sentencing court, and the Minnesota Supreme Cour t 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 o f Minnesota. In his petition, McCall claims that his sentence violates both his due process and Eighth Amendment rights. He also asked the court to appoi nt counsel to represent him in the proceeding. Adopting th e magistrate judge's report and recommendations, the district court denied 4 McCall 's request for appointment of counsel and dismissed his habea s petition, concluding that McCall had procedurall y defaulted on his federal constitutional claims in state court when he failed to raise them on direc t appeal.

McCall appeals. He argues that his case involves complex and non

frivolous claims that warrant court appointed counsel. He further argues tha t he fairly presented his federal constitutional claims to the stat e 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 distric t court erred when it denied his motion for appointment of counsel. McCall conte nds that a court appointed attorney is justified because his habeas petitio n raises complex legal and factual issues that he is unable to effectively develop without th e assistan ce of counsel. Yet, there is neither a constitutional no r statutory right to counsel in habeas proceedings ; instead, it is committed to the di scretion of the trial court. Pennsylvania v. Finley , 481 U.S

. 551, 555-5 7 (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).

## -4- This circuit has identified several factors to guide a district court when i t evaluates whether a petitioner needs court appointed counsel

. These inc lude the factual and legal complexity of the case, and th e petiti oner's ability both to investigate and to articulate his claim s without co urt 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. Th e factual and legal issues raised by McCall's petition are not so complex an d
numerous that the appointment of counsel would benefit either McCall or th e court: h e has clearly demonstrated at least a threshold ability t o articu late his claims, and is capable of self-representation in thi s matter.

McCall ne xt 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 whic h the petitioner has presented to the state court in accordance with state procedural rules.” A bdullah 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, be fore we may reach the merits of a habeas petition, we must first determine whether the petitioner has fairly presented his federa l 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 t hen determine whether the petitioner has complied with stat e proce dural 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., con curring); Satter , 977 F.2d at 1262. If state pr ocedural rules prevent the petitioner from obtaining such a hearing, then the petitioner is also procedurally barred fro m obtaining habeas relief in a federal court

## -5-

unles s he can demonstrate either cause and actual prejudice, or that a miscarr iage of justice will occur if we do not review the merits of th e 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 cour ts.” 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, McCal l challenged his sentence solely
on sta te law grounds: he argued only that the sentencing cour t misinterpreted Minnesota law when it applied the Guidelines. McCall admit s that thes e claims were “phrased in the jargon of state law,” but argue s that they were really “[f]ederal [c]onstitutional issues since the state laws a re in essence restatements of the [f]ederal [c]onstitution i n different words.” Appellant's Br. at 9-10.

We cann ot agree. Mere similarity between the state law claims an d the federal habeas claims is insufficient: “If state courts are to be give n 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 Unit ed States Constitution.” Henry , 513 U.S. at 365-66. Here, n othing that McCall submitted to the Minnesota Court of Appeal s would, in any way, alert it to the constitutional claims that he no w asserts.

Indeed, the very case that McCall contends supports his assertio n 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. 46 1, 252 N.W.2d 269 (1977));
see Krech , 312 Minn. at 464-68, 252 N.W.2d at 272-73 (discussing th e pur pose of the Guidelines using only state precedent). Accordingly, w e believe that McCall failed to fairly present his due process and Eight h Amendment

## -6-

claims to the Minnesota state court.

Because we conclude that McCall fail ed 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.2d295, 296 (8th Cir. 1988). The district court found that u nder state law, McCall waived his federal constitutional claim s because he failed to raise them on direct appeal. We agree. Minnesota la w provides that once th e 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 ti me of his direct appeal. Hence, we conclude that McCall ha s defa ulted on these claims because he failed to pursue them on direc t appeal. Id. ; see also Dent v. State , 441 N.W.2d 497, 499 (Minn. 1989); Fo x v. State , 474 N.W.2d 821, 824 (Minn. 1991).

Thus, w e cannot review his claims on their merits unless McCall i s able to demonstrate e ither cause for his default and actual prejudice, or that the f ailure to consider his claims would result in a fundamenta l 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). Neithe r exception is available to McCall.
McCall has not offered an explanatio n for why he failed to raise his federa l constitutional claims in his direct appeal; instead, he assert s that they were subsumed by his state law claims. Because this assertion do es not constitute cause, we do not consider whether McCall ha s demonstrated prejudic e. Leggins v. Lockhart , 822 F.2d 764, 768 (8th Cir. 1987) (citation omitted).

The fundamental miscarriage of justice exception is equall y unavailing because

## -7-

it is only available to a petitioner who demonstrates “that ' a constitutional violation has probably resulted in the conviction of one wh o 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 f oregoing 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.