* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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 argumentwould 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 wi thout oral argument. Petitioner, a prisoner in Texas, proceeds pro se an d in forma pauperis to appeal the district court’s dismissal of his 28 U.S .C. § 2254 habeas corpus1 It is unclear from the record whether Petitioner ev er filed a notice of

appeal from the state court decision denying his mo tion for a speedy trial and his motion for reconsideration. In its Order filed Mar ch 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 whet her petitioner’s letter stating his intent to appeal, sent to the Clerk of the Kans as Appellate Courts and apparently forwarded to the clerk of the state dist rict court, has been liberally treated as Petitioner’s notice of appeal,” and thathe “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 c hallenge 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. T he district court determined that Petitioner’s failure to perfect a direct appeal fro m the state court decision 1 “was a procedural default that [could not] be challenged u nder federal habeas review” unless Petitioner showed cause and prejudice or “th at a fundamental miscarriage of justice [would] result if [his] claims [were] no t considered.” R., Doc. 3 at 1-2 (Order filed Mar. 17, 1998). Because Petitioner al leged that he had no access to a Kansas attorney or to Kansas legal materials, the d istrict court determined that he should be afforded an opportunity to demonstrate ca use by showing that his lack of knowledge was the result of “a lack of reasonabl e 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 a lso invited Petitioner to identify the prejudice sustained from his procedura l default. See id. at 2 (citing Watson v. New Mexico , 45 F.3d 385, 388 (10th Cir. 1995)). In short, th e district court ordered Petitioner to show cause why the peti tion should not be dismissed for procedural default in the state courts. After reviewing Petitioner’s response, the districtcourt determined that the section 2254 petition should be dismissed. The cou rt 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 revo cation 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 thathe “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 kno wledge of Kansas appellate rules to file a timely notice of appeal in the stat e district court.” R., Doc. 6 at 2 (Order filed Apr. 24, 1998). Consequently, the dis trict court dismissed Petitioner’s habeas corpus petition without prejudi ce 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 o f appealability. Petitioner-4-

renews his application for a certificate of appeala bility to this court to appeal the district court’s dismissal without prejudice of his habeas corpus petition. To obtain a certificate of appealability, Petitione r 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 courtshould have appointed him counsel for his habeas corpus petition “to help [hi m] 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 Applicationfor Certificate of Appealability at 2. However, Petitioner acknowledg es 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 mat erial.” Id. at 3. He requests this court to appoint him legal counsel, provide hi m 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 ca use and prejudice for his procedural default, we must examine his argumen ts 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 a2 Although Petitioner vaguely claims in his response to the district court’s

show cause order that his retained counsel’s repres entation 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. Se e 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 co urt indicates that he was represented by retained legal counsel from June 199 2 through June 1997. 2 His motion for a speedy trial and motion for reconsider ation were filed during this time period. Second, the constitutional right to appointed counsel only attaches in prosecutions where an indigent litigant is actuallydeprived of his liberty. See Scott v. Illinois , 440 U.S. 367, 373 (1979) (adopting actual impriso nment as “the line defining the constitutional right to appointme nt of counsel”); accordElliott v. City of Wheat Ridge , 49 F.3d 1458, 1459 (10th Cir. 1995). In this cas e, 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, ther efore, 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 m ay lose his physical liberty if he loses the litigation”). That Petitioner is inca rcerated in Texas for other-6-

offenses has no bearing on the right-to-counsel ana lysis for the unexecuted Kansas detainer. Therefore, no constitutional righ t to counsel attached when Petitioner moved for a speedy trial and for reconsi deration. Petitioner also argues that the district court’s fa ilure to appoint counsel in his habeas corpus proceeding constitutes cause and prejudice for the default in state court. However, “[a] habeas petitioner is no t 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 Peti tioner actually moved the district court for the appointment of counsel. See McCarthy v. Weinberg , 753 F.2d 836, 838 (10th Cir. 1985) (stating that burdenis on applicant to convince court that there is sufficient merit to his claim t o warrant the appointment of counsel). Thus, we cannot say that the court abuse d its discretion in not appointing counsel for the section 2254 habeas proc eeding. See Capps v. Cowley , 63 F.3d 982, 986 (10th Cir. 1995) (noting that deci sion to appoint counsel on habeas issues in federal court is committed to soun d discretion of district court); McCarthy , 735 F.2d at 839 (same). The failure of the distr ict court to appoint a lawyer to represent Petitioner in his section 2254 habeas corpus petition does not constitute grounds for relief in this case.3 We also note that we agree with the district court’ s assessment that

Petitioner has not demonstrated any prejudice resul ting from his noncompliance with Kansas rules requiring typewritten or computerprinted filings. -7- For these reasons, 3 and for substantially the same reasons set forth b y the district court in its Orders filed April 24 and May27, 1998, we agree with the district court that Petitioner has failed to establ ish either cause or prejudice for his procedural default or that a fundamental miscar riage of justice will occur if his claims are not heard. We therefore conclude th at Petitioner has not made “a substantial showing of the denial of a constitution al right.” 28 U.S.C. § 2253(c)(2). Accordingly, we DENY Petitioner’s ap plication for a certificate of appealability and DISMISS this appeal. Entered for the Court

Monroe G. McKay Circuit Judge