Frey v. Schuetzle, 95-1967

• Decision Date: 06 March 1996
• Docket Number: No. 95-1967,95-1967
• Citation: 78 F.3d 359
• Parties: Jeffrey Eugene FREY, Petitioner-Appellee, v. Timothy SCHUETZLE, Warden, North Dakota State Penitentiary, Respondent-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 359

78 F.3d 359

Jeffrey Eugene FREY, Petitioner-Appellee, v. Timothy SCHUETZLE, Warden, North Dakota State Penitentiary,

Respondent-Appellant.

No. 95-1967.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 15, 1995.

Decided March 6, 1996.

Appeal from the United States District Court for the District of North Dakota, Patrick Conmy, Judge.

Galen J. Mack, Rugby, North Dakota, argued, for appellant.

Anthony R. Renzo, Des Moines, Iowa, argued, for appellee.

Before HANSEN, LAY, and MURPHY, Circuit Judges.

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 referred the case to a magistrate judge for a report and recommendation. The magistrate judge concluded that Frey did not knowingly and voluntarily waive 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 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...