Michael J. Frischenmeyer v. Nola Foulston and Attorney General of Kansas

Citations: 166 F.3d 347; 1998 WL 892302; 1998 U.S. App. LEXIS 37218Docket: 98-3174

Court: Court of Appeals for the Tenth Circuit; December 22, 1998; Federal Appellate Court

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Unpublished opinions may be cited if they have persuasive value and are accompanied by a copy, as per a General Order from November 29, 1993, suspending a prior rule until December 31, 1995. In the case of Michael J. Frischenmeyer v. Nola Foulston and the Attorney General of Kansas, the Tenth Circuit Court of Appeals reviewed the dismissal of Frischenmeyer’s 28 U.S.C. § 2254 habeas corpus petition. The district court dismissed the petition due to a procedural default stemming from Frischenmeyer's failure to perfect a direct appeal after a Kansas state court denied his motions for a speedy trial and reconsideration. The court indicated that for federal habeas review, Frischenmeyer needed to show cause and prejudice or a fundamental miscarriage of justice, given his lack of access to legal counsel and materials. The district court allowed Frischenmeyer to demonstrate cause for his procedural default, but ultimately found that he had sufficient knowledge of the judicial system and had filed a timely appeal, thus failing to establish cause. The petition was dismissed without prejudice, and his request for reconsideration was denied, along with a certificate of appealability. On appeal, Frischenmeyer argued that he was denied counsel and necessary legal materials, but acknowledged that the district court had applied the correct law. He contended that his rights to a speedy trial were violated due to his lack of legal resources.

Petitioner requests the court to appoint legal counsel, provide Kansas legal materials, and either order a revocation or probation violation hearing or dismiss the warrant and detainer for violations of the Speedy Trial Act. The court must assess whether Petitioner has shown cause and prejudice for his procedural default, particularly regarding his claims about the appointment of counsel. Petitioner argues that the Kansas state court's failure to appoint counsel impeded his ability to appeal the denial of his speedy trial motion. However, this argument is flawed for two reasons: first, Petitioner was represented by retained counsel from June 1992 through June 1997 when he filed his motions; second, the right to appointed counsel applies only when an indigent litigant faces deprivation of liberty, which was not the case here since the warrant was not executed.

Additionally, Petitioner claims that the district court's refusal to appoint counsel for his habeas corpus proceeding constitutes cause and prejudice for his default in state court. However, the right to appointed counsel in such proceedings is not absolute, and there is no indication that Petitioner requested counsel from the district court. Consequently, the district court did not abuse its discretion in denying counsel for the section 2254 habeas proceeding.

The court concludes that Petitioner has not established cause or prejudice for his procedural default and that a fundamental miscarriage of justice would not occur if his claims are not heard. Therefore, Petitioner has not made a substantial showing of a constitutional right denial, leading to the denial of his application for a certificate of appealability and dismissal of the appeal. The order is not binding precedent, except under specific legal doctrines, and while there is uncertainty regarding whether Petitioner filed a notice of appeal in state court, he clearly failed to perfect that appeal. Petitioner’s vague assertion regarding ineffective assistance of counsel is deemed insufficient to warrant consideration for a certificate of appealability. Lastly, the court agrees with the district court's assessment that Petitioner has not demonstrated any prejudice from his noncompliance with Kansas filing rules.