D'Alessandro v. Morton ( 1998 )

UNPUBLISHED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unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 certifi-
cate of appealability and dismiss the appeal of the district court's
denial of D'Alessandro's motion to appoint counsel. We grant a cer-
tificate 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 certio-
rari.
D'Alessandro filed a motion for post-conviction relief in the Cir-
cuit 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 post-
conviction relief, D'Alessandro was unable to attend the hearing on
his post-conviction motion because he was incarcerated in New Jer-
sey. 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 preju-
dice 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 post-
conviction 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 appoint-
ment 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 conten-
tions are adequately set out in the materials before the court and argu-
ment would not aid the decisional process.
No. 97-7182, DISMISSED;
No. 97-7850, VACATED AND REMANDED
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