In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3771

RODNEY L. BOYKO,

Petitioner-Appellant,

v.

AL C. PARKE, Superintendent,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 97 C 424--Allen Sharp, Judge.

ARGUED SEPTEMBER 18, 2000--DECIDED JULY 27, 2001


  Before EASTERBROOK, RIPPLE and WILLIAMS,
Circuit Judges.

  RIPPLE, Circuit Judge. At the age of
fifteen, Rodney Boyko was convicted of
the murder of Lester Clouse and sentenced
to 35 years in prison. His conviction was
affirmed on direct appeal by the Indiana
Court of Appeals, see Boyko v. State, 566
N.E.2d 1060 (Ind. Ct. App. 1991), and he
did not petition for transfer to the
Indiana Supreme Court. Mr. Boyko then
filed a petition for postconviction
relief in which he alleged, inter alia,
that his trial counsel was
constitutionally ineffective in failing
to consider and to raise certain
defenses. After holding an evidentiary
hearing on the matter, the Indiana trial
court denied Mr. Boyko’s petition. The
Indiana Court of Appeals affirmed that
denial, and the Indiana Supreme Court
denied Mr. Boyko’s petition for transfer.

  Mr. Boyko subsequently filed a petition
for habeas corpus in the district court.
He then sought leave from the district
court to expand the record to include a
transcript of a hearing that was held
before his case was waived from juvenile
court; he alleged that this transcript
supported his claim of ineffective
assistance of counsel. He also sought
leave to conduct discovery, primarily in
order to depose his trial defense
counsel. The district court denied Mr.
Boyko’s motions and denied his habeas
petition on the merits. Mr. Boyko now
appeals. For the reasons set forth in the
following opinion, we reverse the
judgment of the district court and remand
for further proceedings.

I

BACKGROUND

A.   Facts

  When he was fifteen years old, Mr. Boyko
was involved in a homosexual relationship
with twenty-one-year-old Lester Clouse.
Mr. Boyko did not want to continue
therelationship and came to learn that
Clouse had told a mutual acquaintance
that, if he [Clouse] could not have Mr.
Boyko, no one could. Mr. Boyko, armed
with a .22 caliber semiautomatic pistol,
went to Clouse’s apartment to confront
him. During their conversation, Mr. Boyko
asked Clouse to take a drive with him.
Mr. Boyko had been acting strangely, and,
before leaving the apartment, Clouse said
to his roommates, "’If I’m not back by
this evening you know what happened to me.’"
Boyko v. State, 566 N.E.2d 1060, 1062
(Ind. Ct. App. 1991).

  Mr. Boyko drove Clouse to a secluded
area. The two men got out of the car. Mr.
Boyko confronted Clouse with the "if I
can’t have you no one can" statement, and
he shot the pistol into the air several
times. Clouse grabbed the pistol from Mr.
Boyko. The two men then returned to the
car, and Clouse gave the pistol back to
Mr. Boyko. Mr. Boyko reloaded the pistol
and cocked it, placing a live round in
the pistol’s chamber. Clouse placed his
hand on Mr. Boyko’s leg, and Mr. Boyko
discharged the pistol into Clouse’s
chest.

  After he shot Clouse, Mr. Boyko put the
body in the trunk of his car and asked
several friends to help him dispose of
it. He made plans to leave the state, but
he was apprehended by the police
following a high-speed chase seventeen
hours after the shooting. Clouse’s body
was still in the trunk of the car when
Mr. Boyko was apprehended.

B.   Earlier Proceedings

1.
  Mr. Boyko was placed on trial for the
intentional killing of Clouse. Mr.
Boyko’s trial counsel defended the case
on the ground that the shooting was
accidental. The jury, however, found
otherwise and convicted Mr. Boyko of
Clouse’s murder. The court sentenced Mr.
Boyko to 35 years’ imprisonment.

2.

  Mr. Boyko appealed his conviction to the
Indiana Court of Appeals. He raised three
arguments: (1) the evidence introduced at
trial was insufficient to support the
jury’s finding that he intentionally
killed Clouse, (2) the trial court erred
in allowing him to testify while he was
still feeling groggy from antidepressants
administered to him while he was
incarcerated the night before his trial,
and (3) the trial court erred in
permitting the jury to view evidence that
indicated that Mr. Boyko had a juvenile
record. The Indiana Court of Appeals
rejected all three of Mr. Boyko’s
arguments and affirmed his conviction.
Mr. Boyko did not petition for transfer
to the Indiana Supreme Court./1

3.

  Mr. Boyko filed a petition for
postconviction relief in the trial court
after the Indiana Court of Appeals denied
his direct appeal. He raised two
arguments in his petition: (1)
ineffective assistance of appellate
counsel in failing to argue that trial
counsel had been ineffective and (2)
prosecutorial misconduct. The trial court
initially denied Mr. Boyko’s petition
without a hearing, but it vacated its
decision after Mr. Boyko filed a motion
to correct error. The court then held a
full evidentiary hearing on Mr. Boyko’s
petition.

  The evidence Mr. Boyko presented at the
hearing pertained mainly to his
ineffective assistance of counsel claim.
Prior to the hearing, Mr. Boyko had been
interviewed by Kathleen Goudy, a
certified clinical social worker. Goudy
then testified at Mr. Boyko’s hearing as
to the content of the interview and the
opinions she had formed from it. She
opined that Mr. Boyko never had consented
to his sexual relationship with Clouse;
instead, Clouse repeatedly had raped and
sexually abused Mr. Boyko, but Mr. Boyko
was unable to recognize Clouse’s conduct
as abuse. Goudy also explained that,
starting from the time he was nine years
old, Mr. Boyko had been sexually abused
by several other older men in addition to
Clouse. In Goudy’s opinion, at the time
he shot Clouse, Mr. Boyko was suffering
from post traumatic stress disorder
("PTSD"), the result of years of sexual
abuse. In Goudy’s opinion, when Clouse
touched Mr. Boyko’s leg on the night of
the shooting, Mr. Boyko thought Clouse
was about to molest him again or possibly
kill him./2 Mr. Boyko reacted to
Clouse’s touch in an uncontrolled manner
because that touch triggered a panic
attack as a result of the PTSD. Goudy’s
opinion was that Mr. Boyko shot Clouse in
an attempt to protect himself.

  Based on this testimony, Mr. Boyko
argued at his evidentiary hearing that
his trial counsel had been ineffective in
presenting Mr. Boyko’s relationship with
Clouse to the jury as consensual rather
than abusive, especially given Mr.
Boyko’s legal inability to consent to
sexual relations with an adult under
Indiana’s child molestation laws./3 Mr.
Boyko further argued that his trial
counsel should have considered the
possibility that Mr. Boyko was suffering
from PTSD as a result of years of sexual
abuse and should have presented this
possibility to the jury as negating the
necessary mens rea for murder or as
establishing Mr. Boyko’s perceived need
for self-defense. At the very least, Mr.
Boyko argued, this evidence could have
been presented in mitigation at
sentencing.

  Mr. Boyko’s trial counsel testified at
the evidentiary hearing as well, and Mr.
Boyko questioned him about his failure to
consider PTSD as a possible defense.
Trial counsel explained that he knew of
Mr. Boyko’s sexual encounters with Clouse
and with the other men, but he thought
these relationships were consensual
rather than abusive. He further testified
that he did not investigate whether Mr.
Boyko was suffering from PTSD. He
admitted, however, that he would have
raised PTSD as a defense if he had
realized that Mr. Boyko may have suffered
from it, but he was not certain that it
would have been an effective defense.
  After hearing the evidence and the
arguments, the trial court ruled that Mr.
Boyko’s trial counsel had not been
constitutionally ineffective in failing
to raise a PTSD defense. The court
pointed out that Mr. Boyko himself did
not recognize that he might have suffered
from PTSD at the time of the shooting nor
did he ever suggest to his attorney that
he raise a PTSD defense at trial. The
court concluded that, if Mr. Boyko’s
trial counsel had raised PTSD as a
defense, it would have been an alternate
theory to the accidental shooting theory,
and the presentation of alternate
defenses may have been ineffective with
the jury. The court also noted that trial
counsel presented evidence on behalf of
Mr. Boyko, cross-examined the
prosecution’s witnesses, presented
closing arguments to the jury, and
successfully argued and obtained a jury
instruction regarding the lesser-included
offense of reckless homicide. In light of
these considerations, the court concluded
that the assistance provided by Mr.
Boyko’s trial counsel "was within the
wide range of reasonable professional
legal assistance and that it was not
inadequate so as to render his legal
representation ineffective." Record of
Postconviction Proceedings, Vol. I at 57.

  Mr. Boyko also made several contentions
in his written petition for
postconviction relief that he did not
pursue at his evidentiary hearing. In
particular, Mr. Boyko alleged that his
trial counsel was ineffective in failing
to investigate and present a theory of
self-defense./4 Mr. Boyko indicated in
response to the State’s written
interrogatories that, if his trial
counsel had spoken to various witnesses,
he would have learned that (1) Clouse was
obsessed with Mr. Boyko, (2) Mr. Boyko
feared Clouse, (3) Mr. Boyko did not want
to have a relationship with Clouse, (4)
Clouse repeatedly raped Mr. Boyko, (5)
Mr. Boyko had tried to move out of the
state to avoid Clouse, and (6) Clouse had
threatened Mr. Boyko and was armed when
he made the threat. Although Mr. Boyko
made these assertions in writing, he made
no attempt to support them through live
testimony at his postconviction
evidentiary hearing nor did he pursue
these issues through argument. The trial
court noted Mr. Boyko’s failure to raise
these issues at the evidentiary hearing,
but it declined to comment on them
further.

  Having rejected or declined to address
each of the arguments Mr. Boyko raised in
his petition for postconviction relief,
the court denied the petition in its
entirety.

4.

  Mr. Boyko appealed the trial court’s
denial of his petition for postconviction
relief to the Indiana Court of Appeals.
He challenged the trial court’s
disposition of his ineffective assistance
of counsel claims. The Court of Appeals
first considered whether Mr. Boyko had
waived his ineffective assistance of
counsel claims by not raising them on
direct appeal. It held that, "because
Boyko raised ineffective assistance of
appellate counsel for failure to raise
ineffective assistance of trial counsel
on direct appeal in his post-conviction
petition, the ineffective assistance of
counsel issues have been preserved."
R.40, App.A at 10 (emphasis added). The
court then proceeded to address the
merits of Mr. Boyko’s claims with respect
to both trial and appellate counsel./5

  First, the court considered whether Mr.
Boyko’s trial counsel had been
ineffective. The court recounted Goudy’s
testimony at the evidentiary hearing
concerning her diagnosis of Mr. Boyko as
having suffered from PTSD at the time of
the shooting. It also recounted Mr.
Boyko’s trial counsel’s statements at the
evidentiary hearing that he had not
viewed Mr. Boyko’s relationships as
molestations and that he would have
brought a PTSD defense had he known that
Mr. Boyko was suffering from the
condition. The court also noted Mr.
Boyko’s own statement at trial that he
was "dating" Clouse and his statement at
the postconviction hearing that he did
not know or suggest to his attorney that
he might have had PTSD at the time of the
shooting. Id. at 11. The court then
concluded that, even if Mr. Boyko’s trial
counsel should have investigated a PTSD
defense, it could not say that his
failure to do so "deprived the jury of
evidence concerning that [sic] state of
Boyko’s mental health at the time of the
incident. Boyko’s trial counsel was not
ineffective." Id. at 12.

  The court then turned to Mr. Boyko’s
claim that his trial counsel should have
considered a theory of self-defense. The
court observed that Mr. Boyko had
testified at trial that Clouse had not
threatened him at the time of the
shooting and that the gun had discharged
accidentally. The court reasoned that Mr.
Boyko’s trial counsel had to make a
choice as to the best theory of defense
to present to the jury. The court
explained, "In a situation of this sort,
one can always hypothesize that had
Boyko’s trial counsel taken a different
approach to Boyko’s defense it might have
been more successful. Boyko’s trial
counsel rendered adequate legal
assistance." Id.

  Lastly, the court concluded that,
because Mr. Boyko’s trial counsel had not
been ineffective, his appellate counsel
was not ineffective for failing to raise
trial counsel’s ineffectiveness. The
court therefore affirmed the trial
court’s denial of Mr. Boyko’s petition
for postconviction relief. Mr. Boyko
petitioned for transfer to the Indiana
Supreme Court, but his petition was
denied.

5.

  Having had no success in the state
system, Mr. Boyko sought relief from the
federal courts in the form of a writ of
habeas corpus. His federal habeas
petition has suffered a somewhat tortured
procedural progression. Mr. Boyko
initially filed his habeas petition pro
se. The district court refused to appoint
counsel and dismissed the petition as
untimely. We granted Mr. Boyko a
certificate of appealability and
appointed his current attorney to
represent him. While his appeal was
pending, Mr. Boyko filed a Rule 60(b)
motion for relief from judgment in the
district court. The district court held a
hearing on Mr. Boyko’s Rule 60(b) motion
and purported to grant the motion
following the hearing. We, however, held
that the district court was without
jurisdiction to rule on a Rule 60(b)
motion while an appeal was pending. We
treated the district court’s ruling as a
statement of that court’s intention to
grant Mr. Boyko Rule 60(b) relief and to
reinstate the initial habeas petition.
Consequently, we remanded the case to the
district court to allow it to enter the
appropriate order. See Boyko v. Anderson,
185 F.3d 672 (7th Cir. 1999).

  On remand, the district court granted
Mr. Boyko’s Rule 60(b) motion. Now
represented by counsel, Mr. Boyko filed a
motion to expand the record, to undertake
discovery, and to delay disposition of
the habeas petition until discovery had
been completed. Specifically, Mr. Boyko
sought to expand the record to include a
transcript of a juvenile waiver hearing
held in his case before he was
transferred from juvenile to state court
to be tried as an adult ("the
transcript"). He also wanted to include
in the record various documents needed to
establish the authenticity of the
transcript. According to Mr. Boyko, the
transcript contained testimony that
established that Clouse intended to kill
him, that he knew about Clouse’s threats,
and that his relationship with Clouse was
not consensual. Mr. Boyko believed that
this information rendered highly
questionable his trial counsel’s decision
to present an accident defense to the ju
ry; had his attorney had the transcript,
the attorney would have had the evidence
he needed to recognize a potential self-
defense or PTSD defense. Mr. Boyko also
asserted in his written submissions to
the district court that, despite due
diligence on his part, he had been unable
to obtain a copy of the transcript during
the state court proceedings and therefore
could not introduce it earlier as support
for his ineffective assistance of counsel
claims. Lastly, Mr. Boyko asked the
district court for leave to conduct
discovery, primarily to depose his trial
counsel to determine whether counsel knew
about the transcript at the time of the
trial.

  The district court denied Mr. Boyko’s
requests to expand the record and to
conduct discovery, and it dismissed his
petition on the merits. The court did not
believe that Mr. Boyko’s case was a
candidate for an evidentiary hearing,
expressing some concern that Mr. Boyko
was seeking to present in the district
court issues that were never raised in
the state courts. The court further
stated that discovery was unnecessary,
presumably because Mr. Boyko had failed
to meet the good-cause standard
established by Bracy v. Gramley, 520 U.S.
899 (1997).

  As to the merits of Mr. Boyko’s
petition, the district court stated that
the Indiana Court of Appeals’ decisions
on the ineffective assistance of counsel
claims were not contrary to the Supreme
Court’s decision in Strickland v.
Washington, 466 U.S. 668 (1984). The
court also determined that the state
courts’ decisions were not an
unreasonable application of Strickland to
the facts of Mr. Boyko’s case. Although
noting that the materials Mr. Boyko
sought to incorporate into the record had
an "appeal," R.86 at 6, the district
court believed that the standards
established by 28 U.S.C. sec.
2254(d)/6-com-pelled it to deny Mr.
Boyko’s petition for a writ of habeas
corpus. This appeal followed.


II

DISCUSSION

  Mr. Boyko believes that he is entitled
to a writ of habeas corpus because the
state courts’ rejection of his
ineffective assistance of counsel claims,
as they were presented to them, was an
unreasonable application of Strickland
and its progeny. See 28 U.S.C. sec.
2254(d)(1). Alternatively, Mr. Boyko
submits that the district court abused
its discretion in refusing to allow him
to expand the record or to conduct
discovery in order to incorporate the
transcript and other materials that are
helpful to his case but were unavailable
to him during the earlier proceedings in
state court. Because we believe that Mr.
Boyko is entitled to a limited use of
discovery and expansion of the record, we
do not reach the merits of his
ineffective assistance of counsel claims.


1.

  During his postconviction proceedings,
Mr. Boyko argued to the state courts that
his conviction should be overturned
because his trial counsel’s
representation was constitutionally
deficient. Mr. Boyko submitted that his
counsel should have argued at trial that
the shooting was in self-defense or that
the necessary element of intent was
missing because Mr. Boyko suffered from
PTSD. However, Mr. Boyko never suggested
explicitly to the state courts in the
postconviction proceedings that his trial
counsel was ineffective in failing to
procure a copy of the transcript. Because
Mr. Boyko never has presented his
ineffective assistance claims based on
the transcript to the state courts, we
must determine whether he has exhausted
his state remedies with respect to these
claims.

  A federal court may not grant a writ of
habeas corpus unless the petitioner has
exhausted his state court remedies. See
28 U.S.C. sec. 2254(b)(1)(A). To exhaust
his remedies, a habeas petitioner must
fully and fairly present his federal
claims to the state courts. See Rodriguez
v. Scillia, 193 F.3d 913, 916 (7th Cir.
1999). "Fair presentment requires the
petitioner to give the state courts a
meaningful opportunity to pass upon the
substance of the claims later presented
in federal court." Id.; see also Howard
v. O’Sullivan, 185 F.3d 721, 725 (7th
Cir. 1999). The petitioner must have
placed both the operative facts and the
controlling legal principles before the
state courts. See Rodriguez, 193 F.3d at
916.

  In applying these standards, federal
courts should "avoid hypertechnicality."
Verdin v. O’Leary, 972 F.2d 1467, 1474
(7th Cir. 1992). A petitioner may
reformulate his claims somewhat, so long
as the substance of his argument remains
the same. See Picard v. Connor, 404 U.S.
270, 277-78 (1971) ("Obviously there are
instances in which the ultimate question
for disposition will be the same despite
variations in the legal theory or factual
allegations urged in its support. . . .
We simply hold that the substance of a
federal habeas corpus claim must first be
presented to the state courts.")
(internal citations and quotation marks
omitted); Verdin, 972 F.2d at 1474.
"[M]ere variations in the same claim
rather than a different legal theory will
not preclude exhaustion." Wilks v.
Israel, 627 F.2d 32, 38 (7th Cir. 1980)
(citing Macon v. Lash, 458 F.2d 942, 948
(7th Cir. 1972)). However, a petitioner’s
reformulation of his claim should not
place the claim in a significantly
different legal posture by making the
claim stronger or more substantial. See
Demarest v. Price, 130 F.3d 922, 932 &
939 (10th Cir. 1997).

  Given these principles, we believe Mr.
Boyko’s ineffective assistance of counsel
claim has been exhausted, even though Mr.
Boyko did not base his arguments in the
state court on trial counsel’s failure to
obtain the transcript. The situation
presented in this case is not one in
which a petitioner seeks to present a
ground of ineffectiveness that is
entirely independent of the grounds
presented in the state courts./7 Mr.
Boyko argued throughout his
postconviction proceedings that his trial
counsel should have pursued self-defense
and PTSD theories. He raises these same
claims in his federal habeas petition.
The transcript does not change the
substance of these arguments; instead, it
merely supplies an additional piece of
evidence that counsel would have found
had he pursued self-defense or PTSD
theories. In ruling on Mr. Boyko’s habeas
petition, the federal courts must resolve
the same question that the state courts
were asked to resolve, namely whether Mr.
Boyko’s trial counsel was ineffective in
failing to pursue self-defense or PTSD
theories. See Lanigan v. Maloney, 853
F.2d 40, 44-45 (1st Cir. 1988) (holding
that a habeas petitioner’s claims had
been exhausted, even though the
petitioner reformulated his claim in
federal court by "add[ing] detail"
because the petitioner’s "claim to both
the state and federal courts depend[ed]
upon resolution of the same question").
At most, then, we believe that the
transcript "supplements, but does not
fundamentally alter, the claim presented
to the state courts." Caballero v. Keane,
42 F.3d 738, 741 (2d Cir. 1994); see also
Vasquez v. Hillery, 474 U.S. 254, 258-59
(1986). As such, Mr. Boyko’s present
reliance on the transcript does not
render his ineffective assistance of
counsel claims unexhausted.

2.

  Our determination that Mr. Boyko has
exhausted his ineffective assistance of
counsel claims does not necessarily allow
him to rely on the transcript in pressing
his claims in federal court. The
transcript is a new piece of evidence
that never was placed before the state
courts for their consideration, even
though Mr. Boyko was given the
opportunity to explore his claims during
a postconviction evidentiary hearing.
Although the absence of the transcript
during the state court proceedings did
not affect the legal substance of Mr.
Boyko’s argument, and thus did not
prevent exhaustion, it may have prevented
Mr. Boyko from developing the full
factual basis of his claim. We must
determine what effect, if any, this
underdevelopment of the factual record in
the state courts has on Mr. Boyko’s
present efforts to rely on the transcript
in federal court.

  A federal court’s ability to hold an
evidentiary hearing in order to
supplement the record when the petitioner
"has failed to develop the factual basis
of a claim in State court proceedings" is
severely circumscribed. 28 U.S.C. sec.
2254(e)(2)/8; see also Williams v.
Taylor, 529 U.S. 420, 437 (2000)
("Federal courts sitting in habeas are
not an alternative forum for trying facts
and issues which a prisoner made
insufficient effort to pursue in state
proceedings."). We recognize that Mr.
Boyko has not yet asked the district
court to hold an evidentiary hearing;
instead, he seeks permission to conduct
discovery and to expand the record. These
procedural devices, however, can be used
to introduce new factual information into
the record in lieu of an evidentiary
hearing. See, e.g., Brown v. Johnson, 224
F.3d 461, 469 (5th Cir. 2000) (stating
that expansion of the record can be used
as a "paper hearing" in place of an
evidentiary hearing). When expansion of
the record is used to achieve the same
end as an evidentiary hearing, the
petitioner ought to be subject to the
same constraints that would be imposed if
he had sought an evidentiary hearing. See
McNair v. Haley, 97 F. Supp.2d 1270, 1286
(M.D. Ala. 2000) ("The petitioner cannot
use Rule 7 [of the Rules Governing sec.
2254 cases, which allows expansion of the
record] to secure the benefits that only
subdivision (e)(2) [of sec. 2254] can
bestow.").

  Of course, discovery and expansion of
the record have other uses as well, such
as determining whether an evidentiary
hearing is necessary or proper. See,
e.g., Blackledge v. Allison, 431 U.S. 63,
81-82 (1977) (explaining that discovery
and expansion of the record can be used
to avoid the need for an evidentiary
hearing); Cardwell v. Greene, 152 F.3d
331, 338-39 (4th Cir. 1998), overruled on
other grounds by Bell v. Jarvis, 236 F.3d
149 (4th Cir. 2000) (stating that
expansion of the record may obviate the
need for an evidentiary hearing);
McDonald v. Johnson, 139 F.3d 1056, 1060
(5th Cir. 1998) (stating that expansion
of the record is appropriate to determine
whether an evidentiary hearing is
proper). When the procedural devices
available to habeas petitioners are used
in this manner, it makes little sense to
impose the same restrictions that are
placed on petitioners seeking an
evidentiary hearing.

  Mr. Boyko’s ultimate goal in this case
is to introduce the transcript into the
record and to have a federal court
evaluate his ineffective assistance of
counsel claims in light of the
information in the transcript. Regardless
of the procedural device through which
Mr. Boyko seeks to accomplish this goal,
he is asking that a federal court
evaluate the merits of factual matters
never presented to the state courts.
Because sec. 2254(e)(2) restricts a
petitioner’s attempts to supplement the
factual record, Mr. Boyko must satisfy
that provision’s requirements before he
may place new factual information before
the federal court.

  The Supreme Court clarified the scope of
sec. 2254(e)(2)’s restrictions in
Williams v. Taylor, 529 U.S. 420 (2000).
There, the Court held that, "[u]nder the
opening clause of sec. 2254(e)(2), a
failure to develop the factual basis of a
claim is not established unless there is
lack of diligence, or some greater fault,
attributable to the prisoner or the
prisoner’s counsel." Williams, 529 U.S.
at 432. The Court emphasized that the
focus ought to be on whether the
petitioner was diligent in his efforts to
develop the facts, not on whether the
facts were discoverable. See id. at 435.
"Diligence for purposes of the opening
clause depends upon whether the prisoner
made a reasonable attempt, in light of
the information available at the time, to
investigate and pursue claims in state
court . . . ." Id. The Court also made
clear that, when there is information in
the record that would alert a reasonable
attorney to the existence and importance
of certain evidence, the attorney "fails"
to develop the factual record if he does
not make reasonable efforts to
investigate and present the evidence to
the state courts. See id. at 438-40
(holding that the petitioner failed to
develop the factual record, and therefore
was subject to the provisions of sec.
2254(e)(2), when there was evidence in
the record that put counsel on notice of
the existence and possible materiality of
a psychiatric report, but counsel made
insufficient efforts to obtain the
report).

  In the instant case, Mr. Boyko has made
certain allegations that lead us to
believe that he ought to be given the
opportunity to demonstrate that he did
not "fail" to develop the factual record
in the state courts. Mr. Boyko has
alleged that the State refused to give
him a copy of the transcript, even though
he asked it to do so on several
occasions. The record shows that the
public defender initially appointed to
represent Mr. Boyko, who was not the same
attorney who represented him at trial,
filed a written request for production of
the transcript. According to Mr. Boyko,
this request went unanswered. Mr. Boyko
claims that he personally renewed the
request prior to his postconviction
proceedings by asking the juvenile court
to produce a copy of the transcript for
him, but the "judge and judicial law
clerk" told him that he needed to have a
petition for postconviction relief on
file before a copy of the transcript
could be produced. R.61, Ex.G at 2. These
allegations present the possibility that
the State was delinquent in its duty to
provide Mr. Boyko with a copy of the
transcript. If the State was at fault in
failing to produce the transcript after
Mr. Boyko properly had asked it to do so,
then the absence of the transcript would
not be due to Mr. Boyko’s lack of
diligence in pursuing the matter earlier.
The state court record would be
incomplete through no fault of Mr.
Boyko’s, and sec. 2254(e)(2) would not
prevent him from supplementing the record
in federal court.

  We think it important to emphasize,
however, that the lack of cooperation by
the State that we have just discussed is
by no means a foregone conclusion;
indeed, there are competing inferences
available from the record. For instance,
the written request for production of the
transcript filed by the public defender
may have put Mr. Boyko’s trial counsel on
notice that the transcript existed and
potentially was material. If trial
counsel failed to pursue production of
the transcript despite this notice, that
failure might implicate the opening
clause of sec. 2254(e)(2). Similarly, Mr.
Boyko claims that his postconviction
counsel "did not pursue [Mr. Boyko’s]
juvenile issues--he rejected them out-of-
hand with no inquiry or investigation
into them." Id. This claim suggests that
Mr. Boyko’s postconviction counsel may
have made a conscious choice not to
pursue production of the transcript
despite knowledge of its existence, which
also might implicate the provisions of
sec. 2254(e)(2).
  These competing inferences available
from the record leave us unable to
determine whether Mr. Boyko has failed to
develop the factual basis of his claim in
state court and whether he ought to be
required to satisfy the provisions of
sec. 2254(e)(2) before being allowed to
rely on the transcript in federal court.
Consequently, we must remand this case to
the district court for resolution of this
issue. The district court may, within its
discretion, allow Mr. Boyko to expand the
record or to conduct discovery for the
sole purpose of obtaining the information
necessary to determine whether Mr. Boyko
failed to develop the record in state
court./9 If Mr. Boyko’s lack of
diligence was not the cause of the
transcript’s nonproduction, the district
court should assess the most efficient
and effective means for evaluating the
material in the transcript to determine
whether it is relevant and helpful to Mr.
Boyko’s case. We wish to emphasize that,
on remand, discovery and expansion of the
record should not be used to augment or
evaluate the merits of Mr. Boyko’s
ineffective assistance of counsel claims,
at least not until the district court has
assured itself that Mr. Boyko is entitled
to rely on the transcript in advancing
those claims.

Conclusion

  Mr. Boyko only may rely on the
transcript in advancing his ineffective
assistance of counsel claims in federal
court if he can demonstrate that the
nonproduction of the transcript during
the state court proceedings was not the
result of his own lack of diligence. On
remand, the district court should
determine the proper scope of the
discovery and expansion of the record
necessary to evaluate whether Mr. Boyko
has failed to develop the factual record
in state court. We express no opinion on
the merits of Mr. Boyko’s ineffective
assistance of counsel claims at this
time. Circuit Rule 36 will apply on
remand.

REVERSED and REMANDED

FOOTNOTES

/1 None of the contentions made on direct appeal are
presented in this federal habeas petition.

/2 Mr. Boyko apparently had told Goudy during their
interview that Clouse often began his molesta-
tions by placing his hand on Mr. Boyko’s leg, as
he did that night in the car before Mr. Boyko
shot him.

/3 Under Indiana law at the time of Mr. Boyko’s
trial, a person sixteen years or older who en-
gaged in sexual intercourse with a child between
the ages of twelve and sixteen committed the
crime of child molesting, a Class C felony. See
Ind. Code 35-42-4-3 (amended by P.L. 79-1994,
Sec. 12). Under current Indiana law, a person
twenty-one years or older who engages in sexual
intercourse with a child commits the felony of
child molesting only if the child is under four-
teen years of age. See Ind. Code 35-42-4-3
(2001).

/4 Mr. Boyko also raised a prosecutorial misconduct
claim. That claim is not at issue in this appeal.

/5 The State argues that Mr. Boyko’s arguments in
federal court should be confined to the effec-
tiveness of appellate counsel. However, the
Indiana Court of Appeals held that the ineffec-
tive assistance of counsel issues had been pre-
served and addressed the merits of Mr. Boyko’s
claim with respect to trial counsel without
indicating that the claim was procedurally
barred. Consequently, we are free to reach the
merits of that claim. See Harris v. Reed, 489
U.S. 255, 263 (1989); Jenkins v. Nelson, 157 F.3d
485, 491 (7th Cir. 1998), cert. denied, 527 U.S.
1039 (1999).
/6 28 U.S.C. sec. 2254(d) provides:

(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated on
the merits in State court proceedings unless the
adjudication of the claim--

(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined by
the Supreme Court of the United States; or

(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.

/7 See, e.g., Howard v. O’Sullivan, 185 F.3d 721,
725 (7th Cir. 1999) (holding that the petitioner
had not fairly presented his claim of ineffective
assistance of trial counsel to the state court,
even though he argued in state court that his
postconviction counsel had been ineffective on
the same grounds); Brown v. Shanks, 185 F.3d
1122, 1125 (10th Cir. 1999) (holding that the
petitioner failed to exhaust his claim that
counsel was ineffective in failing to investigate
an intoxication defense, even though the peti-
tioner had argued in state court that counsel had
"failed to raise significant and obvious issues,"
had misadvised him regarding the statute applica-
ble to his conduct, and had failed to raise a
double jeopardy claim) (internal quotation marks
omitted); Smith v. Groose, 998 F.2d 1439, 1441
(8th Cir. 1993) (holding that the federal court
could not review the petitioner’s claim that his
counsel was ineffective in failing to advise him
on a voluntary intoxication defense because the
petitioner had argued in state court only that
counsel was ineffective in failing to advise him
on an involuntary intoxication defense).

/8 28 U.S.C. sec. 2254(e)(2) provides:

If the applicant has failed to develop the factu-
al basis of a claim in State court proceedings,
the court shall not hold an evidentiary hearing
on the claim unless the applicant shows that--

(A) the claim relies on--

(i) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable;
or

(ii) a factual predicate that could not have
been previously discovered through the exercise
of due diligence; and

(B) the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional error, no
reasonable factfinder would have found the appli-
cant guilty of the underlying offense.

/9 Mr. Boyko has suggested that his investigation
into the State’s potential recalcitrance in
producing the transcript may reveal that he has
a claim under Brady v. Maryland, 373 U.S. 83
(1963). It would be premature for us to determine
whether such a claim, not presented previously to
the state courts, may now be considered.
