                            United States Court of Appeals
                                FOR THE EIGHTH CIRCUIT

                                         ___________

                                         No. 96-3366
                                         ___________

Michael McCall,                                 *
                                                *
       Plaintiff/Appellant                      *
                                                *
       v.                                       *                                           Appea
                                                                                            l
                                                                                            from
                                                                                            the
                                                                                            Unite
                                                                                            d
                                                                                            State
                                                                                            s
                                              * District Court for the
Dennis Benson, Warden,                        * District of Minnesota.
                                              *
       Defendant/Appellee.                    *
                                              *
                                              *
                                         ___________

                                                    Submitted:                              March
                                                                                            14,
                                                                                            1997

                                                           Filed:                May 30, 1997
                                         ___________

Before MAGILL,1 MURPHY, Circuit Judges, and GOLDBERG,2 Judge.
                               ___________




       1
        The Honorable Frank J. Magill, was an active judge at the time that this case was
submitted and assumed senior status on April 1, 1997, before the opinion was filed.
       2
         The Honorable Richard W. Goldberg, Judge, United States Court of International Trade,
sitting by designation.
GOLDBERG, Judge.

      Michael R. McCall appeals from an order of the district court3
denying his request for appointment of counsel and dismissing his petition
for habeas corpus.      The district court denied McCall's request for
appointment of counsel because it found that the case did not raise either
factual or legal issues complex enough to warrant appointed counsel. The
district court denied McCall's habeas petition because it held that he was
procedurally barred from obtaining relief. We affirm.

                                            I.

      McCall admitted that on January 22, 1994, he forced a woman into her
nearby car, threatened to kill her, and attempted to rob her. McCall later
entered into a plea agreement and was convicted of simple robbery and false
imprisonment. Pursuant to the terms of the plea agreement, McCall was
sentenced to 83 months for the robbery conviction, and to 25 months, to be
served concurrently, for the false imprisonment conviction. The robbery
sentence reflects an upward departure from the Minnesota Sentencing
Guidelines (“Guidelines”). The sentencing court highlighted the following
factors as relevant to its decision to exceed the Guidelines: the injury
to the victim; the confinement of the victim against her will; the threat
to kill the victim; and a prior conviction involving injury to a victim.
      McCall directly appealed his sentence, challenging it on two levels.
First, he argued that the upward departure was unjustified because the
factors highlighted by the sentencing court were neither substantial nor
compelling.    Second, he argued that the concurrent sentence for false
imprisonment violated Minnesota law because it arose out of a single
behavioral incident. In an unpublished opinion, the Minnesota Court of
Appeals affirmed the sentencing court, and the Minnesota Supreme Court
denied his




     3
      The Honorable David S. Doty, United States District Judge for District of Minnesota.

                                            -2-
petition for further review.

      Pursuant to 28 U.S.C. § 2254, McCall then filed this pro se petition
for a writ of habeas corpus in the United States District Court of
Minnesota. In his petition, McCall claims that his sentence violates both
his due process and Eighth Amendment rights. He also asked the court to
appoint counsel to represent him in the proceeding.           Adopting the
magistrate judge's report and recommendations,4 the district court denied
McCall's request for appointment of counsel and dismissed his habeas
petition, concluding that McCall had procedurally defaulted on his federal
constitutional claims in state court when he failed to raise them on direct
appeal.

      McCall appeals. He argues that his case involves complex and non-
frivolous claims that warrant court appointed counsel. He further argues
that he fairly presented his federal constitutional claims to the state
courts in his direct appeal, albeit somewhat opaquely. For the following
reasons, we affirm the decision of the district court.

                                              II.

      McCall first argues that the district court erred when it denied his
motion for appointment of counsel. McCall contends that a court appointed
attorney is justified because his habeas petition raises complex legal and
factual issues that he is unable to effectively develop without the
assistance of counsel.      Yet, there is neither a constitutional nor
statutory right to counsel in habeas proceedings; instead, it is committed
to the discretion of the trial court. Pennsylvania v. Finley, 481 U.S.
551, 555-57 (1987); Williams v. Missouri, 640 F.2d 140, 144 (8th Cir.
1981). Thus, we review the district court's decision to deny McCall's
motion for abuse of discretion. Battle v. Armontrout, 902 F.2d 701, 702
(8th Cir. 1990) (citation omitted).




       4
         The Honorable Jonathan Lebedoff, United States Magistrate, United States District Court
for the District of Minnesota.

                                              -3-
      This circuit has identified several factors to guide a district court
when it evaluates whether a petitioner needs court appointed counsel.
These include the factual and legal complexity of the case, and the
petitioner's ability both to investigate and to articulate his claims
without court appointed counsel.     Battle, 902 F.2d at 702; Johnson v.
Williams, 788 F.2d 1319, 1322-23 (8th Cir. 1986) (citations omitted).

      After considering these factors, we conclude that the district court
did not abuse its discretion when it refused to appoint counsel.        The
factual and legal issues raised by McCall's petition are not so complex and
numerous that the appointment of counsel would benefit either McCall or the
court: he has clearly demonstrated at least a threshold ability to
articulate his claims, and is capable of self-representation in this
matter.

      McCall next argues that the district court wrongfully dismissed his
habeas petition without ruling on the merits of his federal constitutional
claims. Yet, a federal court may usually only consider “those claims which
the petitioner has presented to the state court in accordance with state
procedural rules.” Abdullah v. Groose, 75 F.3d 408, 411 (8th Cir. 1996),
cert. denied, 116 S. Ct. 1838 (1996) (quoting Satter v. Leapley, 977 F.2d
1259, 1261 (8th Cir. 1992)).

      Hence, before we may reach the merits of a habeas petition, we must
first determine whether the petitioner has fairly presented his federal
constitutional claims to the state court. Duncan v. Henry, 513 U.S. 364,
365-66 (1995) (per curium). When the petitioner has failed to do so, we
must then determine whether the petitioner has complied with state
procedural rules governing post-conviction proceedings, i.e., whether a
state court would accord the petitioner a hearing on the merits. Harris
v. Reed, 489 U.S. 255, 268-70 (O'Connor, J., concurring); Satter, 977 F.2d
at 1262. If state procedural rules prevent the petitioner from obtaining
such a hearing, then the petitioner is also procedurally barred from
obtaining habeas relief in a federal court




                                    -4-
unless he can demonstrate either cause and actual prejudice, or that a
miscarriage of justice will occur if we do not review the merits of the
petition. Abdullah, 75 F.3d at 412-13 (citing Satter, 977 F.2d at 1262).
      In order to fairly present a federal claim to the state courts, the
petitioner must have referred to “'a specific federal constitutional right,
a particular constitutional provision, a federal constitutional case, or
a state case raising a pertinent federal constitutional issue' in a claim
before the state courts.” Myre v. State of Iowa, 53 F.3d 199, 200-01 (8th
Cir. 1995) (quoting Kelley v. Trickey, 844 F.2d 557, 558 (8th Cir. 1988)).
McCall's direct appeal failed to refer to any of the above.

      Instead, in his direct appeal, McCall challenged his sentence solely
on state law grounds: he argued only that the sentencing court
misinterpreted Minnesota law when it applied the Guidelines. McCall admits
that these claims were “phrased in the jargon of state law,” but argues
that they were really “[f]ederal [c]onstitutional issues since the state
laws are in essence restatements of the [f]ederal [c]onstitution in
different words.” Appellant's Br. at 9-10.

      We cannot agree. Mere similarity between the state law claims and
the federal habeas claims is insufficient: “If state courts are to be given
the opportunity to correct alleged violations of prisoners' federal rights,
they must surely be alerted to the fact that the prisoners are asserting
claims under the United States Constitution.” Henry, 513 U.S. at 365-66.
Here, nothing that McCall submitted to the Minnesota Court of Appeals
would, in any way, alert it to the constitutional claims that he now
asserts.

      Indeed, the very case that McCall contends supports his assertion
that his state law claims incorporate his federal habeas claims fails to
discuss, or to even refer to, the federal constitution. Appellant's Br.
at 9-10 (discussing State v. Krech, 312 Minn. 461, 252 N.W.2d 269 (1977));
see Krech, 312 Minn. at 464-68, 252 N.W.2d at 272-73 (discussing the
purpose of the Guidelines using only state precedent). Accordingly, we
believe that McCall failed to fairly present his due process and Eighth
Amendment




                                    -5-
claims to the Minnesota state court.

      Because we conclude that McCall failed to fairly present his federal
habeas claims to the state court, we now address whether Minnesota state
law would prevent him from raising these claims in a state court. Smittie
v. Lockhart, 843 F.2d 295, 296 (8th Cir. 1988). The district court found
that under state law, McCall waived his federal constitutional claims
because he failed to raise them on direct appeal. We agree. Minnesota law
provides that once the petitioner has directly appealed his sentence “all
matters raised therein, and all claims known but not raised, will not be
considered upon a subsequent petition for postconviction relief.” State
v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976); Roby v. State,
531 N.W.2d 482, 484 (Minn. 1995).      There is no evidence that McCall's
habeas claims were unknown, or so novel that their legal basis was unknown,
at the time of his direct appeal. Hence, we conclude that McCall has
defaulted on these claims because he failed to pursue them on direct
appeal. Id.; see also Dent v. State, 441 N.W.2d 497, 499 (Minn. 1989); Fox
v. State, 474 N.W.2d 821, 824 (Minn. 1991).

      Thus, we cannot review his claims on their merits unless McCall is
able to demonstrate either cause for his default and actual prejudice, or
that the failure to consider his claims would result in a fundamental
miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991);
Abdullah, 75 F.3d at 412-13 (citing Satter, 977 F.2d at 1262). Neither
exception is available to McCall.

      McCall has not offered an explanation for why he failed to raise his
federal constitutional claims in his direct appeal; instead, he asserts
that they were subsumed by his state law claims. Because this assertion
does not constitute cause, we do not consider whether McCall has
demonstrated prejudice. Leggins v. Lockhart, 822 F.2d 764, 768 (8th Cir.
1987) (citation omitted).

      The fundamental   miscarriage     of   justice   exception   is   equally
unavailing because




                                      -6-
it is only available to a petitioner who demonstrates “that 'a
constitutional violation has probably resulted in the conviction of one who
is actually innocent.” Brownlow v. Groose, 66 F.3d 997, 999 (8th Cir.
1995), cert. denied, 116 S. Ct. 1049 (1996) (quoting Schlup v. Delo, 513
U.S. 298, 327 (1995)). McCall has not even attempted to show that he was
actually innocent of simple robbery and false imprisonment. Moreover, in
light of his guilty plea, such an attempt would be unpersuasive.

                                   III.

      For the foregoing reasons, we affirm the district court's denial of
the petitioner's request for appointed counsel and it's dismissal of his
habeas petition.


     A true copy.

           Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                    -7-
