Unpublished Disposition, 914 F.2d 265 (9th Cir. 1990)

MEMORANDUM^** 

Woods, an Arizona state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition for failure to exhaust available state remedies. Woods contends that the district court erred in dismissing his petition on the ground that Woods had failed to exhaust available state remedies regarding the fifth of his nine claims for relief, and that the district court abused its discretion in denying his request for appointment of counsel. We affirm in part and remand in part.

* The district court determined that one of the nine claims raised by Woods in his petition for federal habeas relief, "Illegal Search and Seizure of Notebook," was never raised in the state trial or appellate courts, and therefore dismissed the petition. See Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982) ("mixed" petition containing exhausted and unexhausted claims for federal habeas corpus relief must be dismissed); Turner v. Compoy, 827 F.2d 526, 528 (9th Cir. 1987), cert. denied, 109 S. Ct. 1327 (1989) (same). We review the district court's dismissal of a habeas corpus petition de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989).

Even assuming arguendo that Woods exhausted state remedies with regard to his claim of illegal search and seizure, he would be barred from obtaining federal habeas corpus relief on that claim under Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976):

[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.

428 U.S. at 494 (footnotes omitted). Therefore, we affirm the dismissal of Woods' illegal search and seizure claim, and remand the case to the district court for consideration of Woods' remaining claims, which are concededly exhausted. Cf. Martin v. Solem, 801 F.2d 324, 331 (8th Cir. 1986) (failure to exhaust claim not cognizable in federal habeas corpus does not deprive court of right to consider exhausted claim included in same petition).

II

We review the district court's decision not to appoint counsel for an abuse of discretion. Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir.), cert. denied, 479 U.S. 867, 107 S. Ct. 228, 93 L. Ed. 2d 155 (1986). Title 18 U.S.C. § 3006A(g) authorizes a district court to appoint counsel to represent a habeas petitioner whenever "the court determines that the interests of justice so require...." Id. An indigent state prisoner applying for federal habeas corpus relief is not entitled to appointed counsel unless an evidentiary hearing is required, see id., or the circumstances of the particular case indicate that appointed counsel is necessary to prevent due process violations. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023, 107 S. Ct. 1911, 95 L. Ed. 2d 516 (1987). Woods' district court pleadings and briefs on appeal illustrate to us that he had a good understanding of the issues and the ability to present forcefully and coherently his contentions. See LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987). We are therefore unable to find that the district court abused its discretion in denying Woods' motion for appointed counsel.

The parties shall bear their own costs.

AFFIRMED IN PART, REMANDED IN PART.