Unpublished Disposition, 900 F.2d 263 (9th Cir. 1990)

MEMORANDUM^** 

McClure appeals dismissal of his petition for habeas relief claiming ineffective assistance of counsel in his appeal from the Oregon State Parole Board.

The constitutional right to effective assistance of counsel depends on the right to counsel. See Evitts v. Lucey, 469 U.S. 387, 397 n. 7 (1985); Wainwright v. Torna, 455 U.S. 586, 588 (1982); Miller v. Keeney, 882 F.2d 1428, 1432 (9th Cir. 1989). McClure seems to argue that he had a constitutional right to effective assistance of counsel simply because he was before an appellate court. The case he cites, however, only finds a Sixth Amendment right to effective assistance of counsel on the first appeal of right from a criminal conviction. See Evitts v. Lucey, 469 U.S. at 396. That right does not extend to discretionary appeals of criminal convictions. See Ross v. Moffitt, 417 U.S. 600, 610, 612, 618 (1974).

Civil postconviction relief proceedings generally do not give rise to a right to counsel. See Murray v. Giarratano 109 S. Ct. 2765, 2769, 2772 (1989) (no state postconviction relief procedure right to counsel in death penalty cases); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) ("We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions ... Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further.")

Although there may be a right to counsel in some parole revocation proceedings, see Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973) (right to counsel only in minority of parole and probation revocation hearings where fundamental fairness requires); cf. Wolff v. McDonnell, 418 U.S. 539, 569-70 (1973) (right to counsel in prison disciplinary hearings that forfeit good time credits only in special circumstances, if at all), in parole application proceedings, the constitutionally protected interest, if any, is even less weighty than it is in parole revocation proceedings. See Greenholtz, 442 U.S. 1, 9-11 (1978); Green v. McCall, 822 F.2d 284, 289 (2nd Cir. 1987); Newbury v. Prisoner Review Board, 791 F.2d 81, 85 (7th Cir. 1986). If there is a right to counsel in parole application proceedings under some special circumstances, McClure does not assert any special circumstances. Cf. Chatman v. Marquez, 754 F.2d 1531, 1534 (9th Cir. 1985). Even if McClure had a right to counsel before the parole board, he had no right to counsel on appeal of the parole board decision. Because McClure did not show any right to counsel, his ineffective assistance of counsel claim necessarily fails.

AFFIRMED.