*This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

DEC 23 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL J. FRISCHENMEYER, 

Petitioner - Appellant, No. 98-3174

v. (D.C. No. 98-CV-3081)

NOLA FOULSTON and ATTORNEY

GENERAL OF KANSAS,

(D. Kan.)

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
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.

-2-

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 decision1 “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
-3-

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
-4-

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
2Although 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).

-5-

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
-6-

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.
3We 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.

-7-

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