Unpublished Disposition, 872 F.2d 427 (9th Cir. 1988)

MEMORANDUM^** 

Kevin Bruce Dickinson appeals from the denial of his consolidated petitions for a writ of habeas corpus. In his first petition for a writ of habeas corpus, Dickinson claimed that he was denied due process because the Arizona Court of Appeals refused to allow him to file a pro se brief supplementing the opening brief of his appointed counsel. Dickinson filed a second petition for writ of habeas corpus alleging that the Arizona Supreme Court violated his rights by denying his request to file a delayed reply brief and declining to accept jurisdiction on a Petition for Special Action. On May 20, 1988, the district court denied the consolidated petitions on the ground that they failed to present claims cognizable under 28 U.S.C. § 2254. We agree with the district court's ruling and affirm.

II

Dickinson contends that the Arizona Court of Appeals' order denying his request to file a supplemental pro se brief violated his federal constitutional right to due process and equal protection.¹ 

A writ of habeas corpus is available under 28 U.S.C. § 2254 only if a prisoner is held " 'in custody in violation of the Constitution or laws or treaties of the United States.' " Engle v. Isaac, 456 U.S. 107, 119 (1982) (quoting 28 U.S.C. § 2254). Section 2254 does not apply where a petitioner "merely alleges that something in the state proceedings was contrary to general notions of fairness or violated some federal procedural right unless the Constitution or other federal law specifically protects against the alleged unfairness or guarantees the procedural right in state courts." Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).

Dickinson argues that the failure of his attorney to raise certain issues on appeal violated Faretta v. California, 422 U.S. 806 (1975) and was a denial of due process. Dickinson's reliance on Faretta is misplaced. In Faretta, the Supreme Court held that an accused has a constitutional right to proceed to trial without counsel. Id. at 834-836. An accused does not have a constitutional right, however, to dictate to his attorney what issues shall be presented on appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983). Furthermore, an accused does not have a federal constitutional right to serve as co-counsel in a criminal proceeding. McKaskle v. Wiggins, 465 U.S. 168, 183 (1984); United States v. Williams, 791 F.2d 1383, 1389 (9th Cir.), cert. denied, 479 U.S. 869 (1986). Accordingly, the district court correctly concluded that Dickinson failed to show that his right to due process was violated by the Arizona Court of Appeals in denying his request to file a supplemental brief pro se when he was represented by counsel.

Dickinson also asserts that he was entitled to file a supplemental brief pro se under Anders v. California, 386 U.S. 738 (1967). He argues that rejection of the right was a denial of equal protection. Anders does not support this contention. Anders provides that where appellate counsel seeks to withdraw from representation because he or she believes an appeal would be "wholly frivolous," his request must "be accompanied by a brief referring to anything in the record that might arguably support the appeal." Id. at 744. Dickinson's appointed counsel did not seek to withdraw from his representation of his client on appeal. Instead, he filed a brief seeking reversal on the contentions he believed were meritorious. Therefore, Anders is inapplicable under these facts. Refusal of the Arizona Court of Appeals to allow Dickinson to file a supplemental brief was not a denial of equal protection.

III

On February 24, 1988, Dickinson filed a second petition for writ of habeas corpus in federal district court alleging that the Arizona Supreme Court improperly denied his request to file a delayed reply brief and declined to accept jurisdiction on a Petition for Special Action based on the court of appeal's denial of Dickinson's request to file a supplemental brief pro se.

A writ of habeas corpus "is unavailable for alleged error in the interpretation or application of state law." Middleton, 768 F.2d at 1085 (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). "When a state prisoner has failed to allege a deprivation of a federal right, Sec. 2254 does not apply." Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983).

The Arizona Supreme Court's exercise of its discretion not to allow the delayed filing of a reply brief nor to invoke its special action procedures presents a question of the proper application of state law not cognizable under 28 U.S.C. § 2254. Accordingly, the district court properly denied Dickinson's second petition.

IV

Dickinson further claims that the district court failed to address the issue of ineffective assistance of appellate counsel. Dickinson did not raise the issue of the effectiveness of appellate counsel in either petition for habeas corpus.²  Thus we have no record to review.

We decline to consider issues not properly raised in the district court. Willard v. People of State of Calif., 812 F.2d 461, 465 (9th Cir. 1987).

V

Dickinson also asserts that the district court erred in not appointing counsel to represent him in presenting his federal habeas claims. The right to counsel provisions of the Sixth Amendment do not apply in habeas corpus proceedings. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987).

Under 18 U.S.C. § 3006A(a) (2) (B) a district court has discretion when "the interests of justice so require," to appoint counsel for an indigent defendant seeking relief under section 2254. The grounds raised in Dickinson's petitions were not complex. Dickinson has demonstrated a good understanding of the issues and has demonstrated an ability to present his contentions coherently and forcefully. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987).

We have reviewed the claims presented by Dickinson independently and can find no meritorious federal constitutional claim. Thus, under the circumstances of this case the district court did not abuse its discretion in denying Dickinson's request for appointment of counsel.

AFFIRMED.