Michael Dean Vicks, Petitioner-appellant, v. J.m. Ratelle, Warden, Respondent-appellee, 28 F.3d 110 (9th Cir. 1994)

MEMORANDUM^** 

Michael Dean Vicks appeals pro se from the district court's denial of his second petition for writ of habeas corpus, arguing that the district court erred by holding that the petition was successive as to certain claims and abusive as to others. A habeas petition is successive when it contains claims previously asserted in an earlier petition, and a state prisoner abuses the petition for writ of habeas corpus when he advances claims for the first time in a later petition that he could have made in a previous petition. McCleskey v. Zant, 499 U.S. 467, 487-88 (1991). Cf. 28 U.S.C. § 2244(b).

Vicks' second petition was successive with respect to his claims of improper admission of evidence of co-defendant Alton Stovall's blood type and improper jury instructions on aiding and abetting, because Vicks had asserted those claims in his previous petition and failed to allege new or different grounds in support thereof in his second petition. Vicks' second petition was abusive with respect to the insufficient evidence claim because Vicks failed to assert the claim in the previous petition, and this failure was not excused on the ground of functional illiteracy.¹  See Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986). Accordingly, the district court did not err by ruling as it did. See Sawyer v. Whitley, 505 U.S. ----, ----, 112 S. Ct. 2514, 2518 (1992).

Vicks also contends that the district court abused its discretion by denying his request for appointment of counsel. There is no constitutional right to appointed counsel in habeas proceedings, and no exceptional circumstances existed that would have warranted the appointment of counsel in the instant case. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

AFFIRMED.