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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
 Frey attached an addendum to his habeas petition which 1

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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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. The district court

1
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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 onthe-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
 In reaching this conclusion, we remain mindful that Frey's 2

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. 

 The magistrate judge's report and recommendation does not 3

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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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. The record indicates that both parties framed

2

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
 Given this disposition, we decline to address the State's 4

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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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.