UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL RICHARD D'ALESSANDRO,

Petitioner-Appellant,

v.

WILLIS E. MORTON; ATTORNEY

No. 97-7182

GENERAL OF THE STATE OF NEW

JERSEY; ATTORNEY GENERAL OF THE

STATE OF MARYLAND,

Respondents-Appellees.

MICHAEL RICHARD D'ALESSANDRO,

Petitioner-Appellant,

v.

WILLIS E. MORTON; ATTORNEY

No. 97-7850

GENERAL OF THE STATE OF NEW

JERSEY; ATTORNEY GENERAL OF THE

STATE OF MARYLAND,

Respondents-Appellees.

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, District Judge.

(CA-97-2316-S)

Submitted: April 14, 1998

Decided: June 30, 1998

Before WIDENER, MURNAGHAN, and NIEMEYER,

Circuit Judges.

_________________________________________________________________
No. 97-7182, dismissed; No. 97-7850, vacated and remanded by

unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Michael Richard D'Alessandro, Appellant Pro Se.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Michael R. D'Alessandro appeals from the district court order

denying relief on his petition filed under 28 U.S.C.A. § 2254 (West

1994 & Supp. 1998), and from the district court's denial of

D'Alessandro's motion to appoint counsel. We grant leave to proceed

in forma pauperis in both appeals. In No. 97-7182, we deny a certificate of appealability and dismiss the appeal of the district court's

denial of D'Alessandro's motion to appoint counsel. We grant a certificate of appealability in No. 97-7850 and vacate and remand for

further proceedings regarding whether D'Alessandro has exhausted

his available state remedies.

I.

D'Alessandro was convicted in Maryland state court of storehouse

breaking and stealing. At the time of his conviction in Maryland,

D'Alessandro was already serving a fifty-nine year sentence in New

Jersey state prison. The Maryland state court sentenced D'Alessandro

to ten years' incarceration, to begin immediately following service of

his New Jersey sentence.

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D'Alessandro appealed his conviction to the Court of Special

Appeals of Maryland, contending among other claims that he had

been denied his right to a speedy trial and that he had been unlawfully

extradited to Maryland to stand trial there. D'Alessandro's conviction

was affirmed by the Court of Special Appeals of Maryland, and the

Court of Appeals of Maryland denied his petition for a writ of certiorari.

D'Alessandro filed a motion for post-conviction relief in the Circuit Court for Montgomery County, Maryland, raising an ineffective

assistance of counsel claim. Although Maryland law provides that

petitioners have the right to attend any hearing on a motion for postconviction relief, D'Alessandro was unable to attend the hearing on

his post-conviction motion because he was incarcerated in New Jersey. Because D'Alessandro was not present at the hearing and had not

waived his right to be present, the Circuit Court dismissed

D'Alessandro's petition without prejudice.

II.

D'Alessandro filed the instant petition under 28 U.S.C.A. § 2254,

contending that he was denied his right to a speedy trial, that he was

unlawfully extradited to Maryland to stand trial, and that he received

ineffective assistance of counsel. D'Alessandro also filed a motion to

appoint counsel. The district court denied D'Alessandro's motion to

appoint counsel.*

The district court dismissed D'Alessandro's petition for failure to

exhaust state remedies. The district court held that because

D'Alessandro's post-conviction motion was dismissed without prejudice and he could bring another post-conviction motion in Maryland

court, D'Alessandro's ineffective assistance of counsel claim had not

_________________________________________________________________

*D'Alessandro immediately appealed from this order. D'Alessandro's

appeal from the denial of his motion to appoint counsel is interlocutory.

See 28 U.S.C. § 1291 (1994). However, because the district court finally

decided the petition on the merits, the order denying the motion to

appoint counsel is now reviewable and D'Alessandro's two appeals have

been consolidated for review. See In re J.T.R. Corp., 958 F.2d 602, 604

n.1 (4th Cir. 1992).

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been exhausted. Accordingly, under Rose v. Lundy , 455 U.S. 509

(1982), the district court dismissed the entire petition.

On appeal, D'Alessandro contends that the district court erred by

finding that he failed to exhaust his state court remedies (No. 97-

7850), and by denying his motion to appoint counsel (No. 97-7182).

Because D'Alessandro's inability to attend the Maryland postconviction hearing was not due to his deliberate free choice, nor did

he voluntarily forego the opportunity to challenge his conviction

while in Maryland, we vacate and remand in No. 97-7850 for further

proceedings regarding whether the exhaustion requirement should be

deemed satisfied under the procedure announced in Farmer v. Circuit

Court, 31 F.3d 219, 222-24 (4th Cir. 1994). See Whittlesey v. Circuit

Court, 897 F.2d 143, 145-46 (4th Cir. 1990).

A review of the record shows that D'Alessandro is fully able to

present his case, and that the issues are not so complex that appointment of counsel is warranted. See Murray v. Giarratano, 492 U.S. 1,

7-8 (1989); Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984).

Accordingly, the district court did not abuse its discretion in denying

D'Alessandro's motion to appoint counsel, and we deny a certificate

of appealability and dismiss the appeal of that order. (No. 97-7182).

We dispense with oral argument because the facts and legal contentions are adequately set out in the materials before the court and argument would not aid the decisional process.

No. 97-7182, DISMISSED;

No. 97-7850, VACATED AND REMANDED

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