UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT MICHAEL RICHARD D'ALESSANDRO, Petitioner-Appellant,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97-7182, dismissed; No. 97-7850, v acated and remanded by unpublished per curiam opinion.

_________________________________________________________________ COUNSEL Michael Richard D'Alessandro, Appellant Pro Se.

_________________________________________________________________ Unpublished opinions are not binding pr ecedent in this circuit. See Local Rule 36(c).

_________________________________________________________________ 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 pro ceedin forma pauperis in both appeals. In No. 97-7182, we deny a certificate of appealability and dismiss the appeal of the district court'sdenial of D'Alessandro's motion to appoint counsel. We grant a certificate of appealability in No. 97-7850 and v acate 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.
2D'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 theCourt 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 thatpetitioners have the right to attend any hearing on a motion for postconviction relief, D'Alessandro was unable to attend the hearing onhis 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 becauseD'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. See28 U.S.C. § 1291 (1994). However, b ecause 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).
3been 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 s hould 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 topresent 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
4