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No. 95-1967
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Jeffrey Eugene Frey, *
*
Petitioner-Appellee, * Appeal from the United States
* District Court for the
v. * District of North Dakota.
*
Timothy Schuetzle, Warden, North *
Dakota State Penitentiary, *
*
Respondent-Appellant. *
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Submitted: November 15, 1995
Filed: March 6, 1996
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Before HANSEN, LAY, and MURPHY, Circuit Judges.
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HANSEN, Circuit Judge.
The Warden of the North Dakota State Penitentiary (State) appeals
from a district court order granting a writ of habeas corpus under 28
U.S.C. § 2254 to Jeffrey Frey, who was convicted of murder and aggravated
assault under North Dakota law. The district court, adopting the report
and recommendation of a United States magistrate judge, ruled that Frey did
not knowingly and voluntarily waive his constitutional right to testify on
his own behalf. We reverse and remand for further proceedings.
Frey was charged and convicted of one count of AA murder and one
count of aggravated assault under North Dakota law and sentenced to a
combined term of 30 years of imprisonment. Frey's conviction was affirmed
on direct appeal by the Supreme Court of
North Dakota. State v. Frey, 441 N.W.2d 668 (N.D. 1989). Frey's state
court petition for postconviction relief was denied by the state trial
court and by the Supreme Court of North Dakota on appeal. Frey v. State,
509 N.W.2d 261 (N.D. 1993).
Assisted by retained counsel, Frey then filed the instant habeas
petition raising three grounds for relief: (1) ineffective assistance of
trial counsel; (2) actual innocence of AA murder; and (3) North Dakota's
AA murder statute transgresses the 14th Amendment because it is void for
vagueness and violates the equal protection clause.1 The district court
1
Frey attached an addendum to his habeas petition which
provided additional facts. With respect to the ineffective
assistance of counsel claim contained in ground (1) of his habeas
petition, it states:
Ground 2 [sic] Supporting Facts.
(1) Trial counsel's refusal to permit
petitioner to testify in his own behalf was
incompetent and constituted ineffectiveness
given the factual context of the case and the
self-defense assertions of trial counsel to
court and jury.
(2) Trial counsel was incompetent in telling
the jury in opening statement they would hear
testimony of specific facts supporting
petitioner's acting in self-defense and then
failing to present the petitioner's testimony.
(3) Any waiver of the AA Murder lesser-included
offense instructions was made before petitioner
learned he was not taking the stand to testify
on his own behalf, and, therefore, could not
have been knowing and intelligent.
(4) The cumulative effect of trial counsel's
incompetencies and errors constituted
ineffective assistance of counsel, probably
changed the outcome, and deprived the
petitioner of a fair trial.
(Appellant's App. at 9.)
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referred the case to a magistrate judge for a report and recommendation.
The magistrate judge concluded that Frey did not knowingly and voluntarily
waive
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his constitutional right to testify on his own behalf because his state
trial counsel did not inform him that the decision of whether to testify
on his own behalf was ultimately Frey's, and not counsel's, decision to
make. In fact, the magistrate judge found, Frey's counsel suggested that
he would withdraw if Frey insisted on testifying. The magistrate judge
also relied on the fact that the state trial court failed to secure an on-
the-record waiver from Frey. Based on this determination, the magistrate
judge recommended granting Frey habeas relief on this basis and declined
to address the other grounds for relief Frey asserted in his petition. The
district court adopted the magistrate judge's report and recommendation.
The State appeals from this ruling.
The State contends that the district court erred by granting Frey
habeas relief on the basis that Frey did not knowingly and voluntarily
waive his constitutional right to testify, because Frey never asserted such
a theory as an independent ground for relief in his habeas petition.
Rather, the State argues, throughout this habeas litigation Frey has
couched his claim that he was not permitted to testify in terms of the
ineffective assistance of counsel, and such a claim is fundamentally
different from a stand-alone claim that a criminal defendant did not
knowingly and voluntarily waive his right to testify. The State claims it
was prejudiced by the magistrate judge's ruling because the court never
informed the State that it was contemplating granting Frey habeas relief
on a basis that was not pled or addressed by the parties in brief or
argument. We agree.
We have stated in the past that we will not consider issues or
grounds for relief that were not alleged in a prisoner's habeas petition.
Williams v. Lockhart, 849 F.2d 1134, 1139 (8th Cir. 1988). Likewise,
district courts must be careful to adjudicate only those claims upon which
the petitioner seeks relief and take care not to decide claims upon which
the habeas petitioner never
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intended to seek relief. We note that as a general rule a pro se habeas
petition must be given a liberal construction and that such a petitioner
is not required to identify specific legal theories or offer case citations
in order to be entitled to relief. See Jones v. Jerrison, 20 F.3d 849, 853
(8th Cir. 1994). However, federal courts should not grant habeas relief
to a petitioner based upon a legal theory that involves an entirely
different analysis and legal standards than the theory actually alleged by
the petitioner. See Williams, 849 F.2d at 1139 (declining to address claim
of insufficient evidence where sole grounds asserted for habeas relief were
ineffective assistance of counsel). This is especially true when the
habeas petition, as in this case, was prepared by counsel. Jones, 20 F.3d
at 853 (citing treatise which observed that habeas petitions prepared by
counsel require more specificity than pro se petitions and should cite
specific statutory or constitutional basis upon which relief is sought).
In this case, as noted above, the magistrate judge recommended
granting Frey habeas relief on the basis that he did not knowingly and
voluntarily waive his right to testify. Frey did not allege such an
independent basis for relief in his habeas petition, however, and has made
no showing that he asserted this as a specific ground for relief in the
district court. Frey contends that, giving a fair and liberal
interpretation to the ineffective assistance of counsel claim contained in
Ground 1 of his habeas petition, the magistrate judge appropriately
concluded that this encompassed the separate claim that he did not
knowingly and voluntarily waive his constitutional right to testify on his
own behalf.
We disagree. In El-Tabech v. Hopkins, 997 F.2d 386, 389 (8th Cir.
1993), we held, albeit in the procedural default context, that a claim
charging the denial of the constitutional right to testify on one's own
behalf "is wholly unrelated to the elements of an
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ineffective assistance of counsel claim." The right to testify on one's
own behalf at a state criminal trial is derived from the Fourteenth
Amendment's due process clause, the Sixth Amendment's Compulsory Process
Clause, and the Fifth Amendment's prohibition on compelled testimony, Rock
v. Arkansas, 483 U.S. 44, 51-53 (1987), United States v. Blum, 65 F.3d
1436, 1444 (8th Cir. 1995) ("The right to testify on one's own behalf at
a criminal trial is derived from the fifth and sixth amendments."); the
right to effective assistance of counsel, however, is a necessary corollary
to the Sixth Amendment's clause guaranteeing a criminal defendant the
assistance of counsel in his defense. Strickland v. Washington, 466 U.S.
668, 684-85 (1984). Accordingly, if Frey was seeking habeas relief on the
basis that he did not knowingly and voluntarily waive his right to testify,
he should have explicitly pled that as a separate ground for relief in his
federal habeas petition.2 The record indicates that both parties framed
the issues and made their arguments before the magistrate judge based on
Frey's ineffective assistance of counsel claim, and there is no indication
that the magistrate judge apprised the State that he was contemplating
granting Frey relief on a basis not set forth independently in the habeas
petition.3
The district court erred in granting Frey habeas relief on a basis
that was not alleged in his petition. We therefore reverse the judgment
of the district court and remand this case to the district court with
directions to resolve each and all of the
2
In reaching this conclusion, we remain mindful that Frey's
habeas petition was prepared by retained counsel, and
accordingly, we believe that we should only adjudicate those
grounds upon which habeas relief was actually sought.
3
The magistrate judge's report and recommendation does not
mention Strickland or any of the cases interpreting it, or even
discuss the term "ineffective assistance of counsel." Thus, it
cannot be argued that the district court granted Frey relief on
the basis that his counsel was ineffective.
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claims which Frey raised in his habeas petition. On remand, Frey of course
may seek permission from the district court to amend his habeas petition
to include among his other claims for resolution a separate stand-alone
constitutional claim that he did not knowingly and voluntarily waive his
right to testify.4
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
4
Given this disposition, we decline to address the State's
contention that Frey did not present a claim in the North Dakota
state courts that his waiver of his constitutional right to
testify on his own behalf was not knowing and voluntary.
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