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 selfdefense 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-ofhand 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 molestations 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 engaged 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 fourteen 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 effectiveness of appellate counsel. However, the

Indiana Court of Appeals held that the ineffective assistance of counsel issues had been preserved 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 petitioner had argued in state court that counsel had

"failed to raise significant and obvious issues,"

had misadvised him regarding the statute applicable 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 factual 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 applicant 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.