We substitute Larry Jenkins, the current warden of Fox Lake 

Correctional Institution, as the Respondent in this action.

See Fed. R. App. P. 43(c)(2).

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2809

ALAN R. WARD,

Petitioner-Appellant,

v.

LARRY JENKINS, Warden,

Fox Lake Correctional Institution ,



Respondent-Appellee.

Appeal from the United States District Court 

for the Eastern District of Wisconsin.

No. 2:07-CV-961—Lynn Adelman, Judge.

ARGUED NOVEMBER 12, 2009—DECIDED JULY 23, 2010

Before CUDAHY, MANION, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Petitioner Alan R. Ward

pleaded guilty in Wisconsin state court to felony theft

by contractor and felony bail jumping after taking down
2 No. 08-2809

payments from customers of his home improvement

business without performing any of the work he contracted to do. He was sentenced to five years’ imprisonment and nine years’ supervised release. Ward sought

postconviction relief in the state courts arguing, inter alia,

that his counsel was ineffective because he ignored

Ward’s requests to file a motion to withdraw his guilty

plea prior to sentencing. After exhausting state postconviction remedies, Ward sought federal habeas corpus

relief under 28 U.S.C. § 2254. The district court denied

Ward’s petition without holding an evidentiary hearing.

Because Ward has alleged facts which, if proven, would

entitle him to federal habeas relief, and because he was

never afforded a full and fair hearing in the state courts,

we remand to the district court for an evidentiary hearing.

I. BACKGROUND

Ward owned a home improvement business called

Ward Construction. Though Ward may have been a

skilled contractor, he had serious problems with the

financial side of his operation. Ward accepted down

payments from numerous customers, but failed to perform the work he contracted to do. As a result, he was

charged with multiple violations of Wisconsin’s criminal

theft by contractor statute, Wis. Stat. § 943.20(1)(b). He

was also subsequently charged with multiple counts of

felony bail jumping, Wis. Stat. § 946.49(1)(b), when he

continued to run his business after posting bail in violation of his signature bond. Overall, Ward was charged

in four informations with 21 total counts of theft by

contractor and bail jumping.
No. 08-2809 3

Ward had a plea hearing in Sauk County Circuit Court

on March 10, 2004. He was represented by attorney

Roger Klopp, whom he met for the first time that day.

Ward claims that at no time during that meeting did

Klopp review possible defenses to the charges with him.

At the hearing, the state set forth the terms of a plea

agreement. Ward would plead guilty to two counts of

theft by contractor and three counts of felony bail

jumping, and the remaining counts in the various

informations would be dismissed, but read in for the

purposes of sentencing and restitution. The amount of

restitution would be determined in conjunction with

sentencing, and the state would cap its total confinement

recommendation to six years.

Some confusion ensued when it came time for Ward to

enter a plea. Asked how Ward wished to plea, Klopp

initially answered “no contest.” The court noted that the

plea agreement was based on a plea of guilty, not no

contest. Klopp immediately corrected himself and

clarified that Ward’s plea was “guilty,” and stated that he

had explained the difference between that and no contest

to his client. Ward, however, immediately spoke up and

told the court that he did not in fact understand the

difference between the two. The court then provided an

explanation to Ward, which Ward stated he understood.

Following this explanation, however, Ward repeated

his desire to plead no contest.

Concluding that there was apparently no agreement,

the judge began to schedule the case for trial. Klopp

interjected and asked for a recess in order to explain
4 No. 08-2809

The court admitted the state’s proposed restitution, but gave 1

Ward thirty days to challenge the state’s proposal. Neither

(continued...)

and clarify the details of the plea agreement with Ward,

which the court granted. Ward claims that during this

recess, Klopp pressured him to plead guilty. Back in

court after the recess, Ward indicated that he had come

to understand the difference between guilty and no

contest, and entered a plea of guilty pursuant to the

agreement. The court accepted the plea and scheduled

a sentencing hearing.

Following the plea hearing, but before sentencing,

Ward asked for a new lawyer. Klopp withdrew as counsel,

and Attorney Gerald Opgenorth was appointed in his

stead on September 1, 2004. Ward claims that thereafter,

he repeatedly instructed Opgenorth to withdraw his

guilty plea, but that Opgenorth ignored his requests.

According to Ward, Opgenorth went so far as to draft a

motion to withdraw the plea, but never filed it. It is

this alleged refusal to withdraw the plea that forms

the basis of Ward’s habeas petition before this court.

With his guilty plea still in place, Ward’s sentencing

hearing took place on February 11, 2005. Ward spoke at

the hearing, but made no indication that he wanted to

go to trial instead of pleading guilty, nor did he bring

up any alleged requests to Opgenorth to move to withdraw his plea. The court sentenced Ward to five years’

imprisonment and nine years’ supervised release and

tentatively ordered restitution in the amount of $78,000.1
No. 08-2809 5

(...continued)

Opgenorth nor Ward filed a request for another restitution

hearing, so the court ordered Ward to pay the $78,000 in

restitution that had been proposed by the state. 

Ward sought postconviction relief following judgment.

In a pro se motion, Ward raised a host of claims, including

allegations that both attorneys Opgenorth and Klopp

rendered ineffective assistance of counsel. With respect

to Opgenorth, Ward stated that he was ineffective due

to “[t]he denial of defendant’s continued request to

WITHDRAW THE PLEA. Attorney Opgenorth did in

fact typed [sic] out defendant’s motion to withdraw the

plea, but insisted not to follow through with defendant’s

request to withdraw the guilty plea.” With respect to

Klopp, Ward alleged that he “changed” Ward’s no

contest plea without his consent, and that he waived

Ward’s right to a preliminary hearing without his consent. Ward’s motion cited the Sixth and Fourteenth

Amendments, Strickland v. Washington, 466 U.S. 668 (1984),

and a number of state cases involving ineffective assistance of counsel claims. Ward requested a Machner hearing,

an evidentiary hearing provided under Wisconsin law

to preserve trial counsel’s testimony when pursuing an

ineffective assistance of counsel claim. See State v. Machner,

285 N.W.2d 905, 908-09 (Wis. 1979); see also Northern v.

Boatwright, 594 F.3d 555, 559 (7th Cir. 2010). The trial court

denied all of Ward’s claims and denied a Machner hearing.

Ward appealed to the Wisconsin Court of Appeals, again

alleging that Opgenorth “did not respect the client’s
6 No. 08-2809

decision to withdraw the plea,” and again sought a

Machner hearing to develop evidence in support of his

allegations. The court of appeals also denied Ward’s

claims. In its opinion, the court set forth the Strickland

standard, and stated “Ward contends that . . . Opgenorth

provided ineffective assistance of counsel because [he]

failed to request a restitution hearing. We reject this

claim because, among other things, Ward did not adequately plead it in his postconviction motion.” State v.

Ward, 739 N.W.2d 490 (Wis. Ct. App. 2007) (unpublished

disposition). The appellate court did not directly address

Ward’s claim that Opgenorth ignored requests to withdraw Ward’s guilty plea. Ward sought review from the

Wisconsin Supreme Court, again noting that he had been

denied an evidentiary hearing. The Wisconsin Supreme

Court denied review. State v. Ward, 742 N.W.2d 525

(Wis. 2007) (table disposition).

Having exhausted his state remedies, Ward filed a pro se

petition for a writ of habeas corpus in the United States

District Court for the Eastern District of Wisconsin pursuant to 28 U.S.C. § 2254. In the petition, Ward alleged

multiple instances where both Klopp and Opgenorth

provided ineffective assistance of counsel, including

Opgenorth’s failure to withdraw Ward’s guilty plea. The

district court denied all of Ward’s claims, finding that

the state court did not unreasonably apply Strickland

because Ward did not allege that he was prejudiced

by Klopp or Opgenorth’s conduct. Still acting pro se,

Ward appealed to this court. We granted a certificate of

appealability and appointed counsel to represent him as

to a single issue: whether Opgenorth rendered ineffec-
No. 08-2809 7

tive assistance of counsel by refusing to file a motion to

withdraw Ward’s guilty plea.

II. ANALYSIS

A. Procedural Default

Before reaching the merits of Ward’s petition, we first

address the state’s argument that Ward procedurally

defaulted his ineffective assistance of counsel claim.

We review a district court’s procedural default ruling

de novo. Hadley v. Holmes, 341 F.3d 661, 664 (7th Cir. 2003).

The procedural default doctrine precludes federal

review of a state court’s habeas decision when the state

court’s decision was based on adequate and independent

state law, or when the federal issue was not fairly presented to the state courts and those courts would now

hold the claim procedurally barred. Coleman v. Thompson,

501 U.S. 722, 729 (1991); see also Perruquet v. Briley, 390

F.3d 505, 514 (7th Cir. 2004). The doctrine requires that

petitioners fairly present their claims “in concrete,

practical terms, [so that] the state court [is] sufficiently

alerted to the federal constitutional nature of the issue.”

Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001)

(quoting Kurzawa v. Jordan, 146 F.3d 435, 442 (7th Cir.

1998)). To determine whether a constitutional issue

has been fairly presented, we consider four factors:

“1) whether the petitioner relied on federal cases that

engage in a constitutional analysis; 2) whether the petitioner relied on state cases that apply a constitutional

analysis to similar facts; 3) whether the petitioner
8 No. 08-2809

framed the claim in terms so particular as to call to mind

a specific constitutional right; and 4) whether the petitioner alleged a pattern of facts that is well within the

mainstream of constitutional litigation.” Ellsworth, 248

F.3d at 639. In determining whether a claim has been

fairly presented, we liberally construe pro se petitions

such as Ward’s. See Johnson v. Hulett, 574 F.3d 428, 433

(7th Cir. 2009).

The state argues that Ward procedurally defaulted his

claim because he failed to fairly present the Wisconsin

courts with a federal issue, and the state courts ruled

against Ward based on adequate and independent

state law grounds. We disagree. A review of Ward’s

postconviction motion before the state court shows that

he fairly presented a federal issue. Ward claimed that

Opgenorth provided ineffective assistance of counsel

because he failed to withdraw his guilty plea. Ward cited

the Sixth and Fourteenth Amendments, Strickland v.

Washington, and a number of state cases involving constitutional analysis. While Ward’s motion did not

provide a highly detailed factual basis for Opgenorth’s

alleged deficient conduct or a precise account of how

that conduct prejudiced Ward, it adequately called to

mind a specific constitutional right—the Sixth Amendment right to effective assistance of counsel—and alleged

a pattern of facts that is well within the mainstream of

constitutional litigation of that right. See Perruquet, 390

F.3d at 512 (“Whatever gaps there may be in [defendant’s]

petition and supporting memorandum, the basic

rationale of [defendant’s] due process argument is

readily discernible.”). Ward’s claim contains enough
No. 08-2809 9

detail to have sufficiently alerted the state court to

his federal constitutional claim.

Of course, Ward must present the same “factual and

legal bases” to the federal court that he presented to the

state court. Curtis v. Montgomery, 552 F.3d 578, 583 (7th

Cir. 2009). “[H]ypertechnical congruence between the

claims” made in the federal and state fora is not

required, however, Anderson v. Benik, 471 F.3d 811, 814-15

(7th Cir. 2006), and a petitioner may “reformulate his

claims somewhat, so long as the substance of his argument remains the same.” Boyko v. Parke, 259 F.3d 781, 788

(7th Cir. 2001). While Ward’s federal argument is more

developed than it was before the state court (as one

would expect with the benefit of counsel), the substance

is the same: that Opgenorth ignored requests to move

to withdraw the guilty plea. See Picard v. Connor, 404

U.S. 270, 277 (1971) (holding that “variations in the legal

theory or factual allegations” of a claim do not bar

review so long as the substance of the federal claim

remains the same).

B. Whether Ward is Entitled to an Evidentiary Hearing

Ward seeks habeas corpus relief on the basis that he

was denied effective assistance of counsel when

Opgenorth allegedly refused to move to withdraw

Ward’s guilty plea. Ward claims that he repeatedly

asked Opgenorth to file a motion to withdraw the plea

prior to sentencing, but that Opgenorth ignored those

requests. According to Ward, Opgenorth even went so

far as to type up a motion to withdraw the plea, but
10 No. 08-2809

never filed it. Ward claims that had Opgenorth heeded

his requests, Ward would not have pleaded guilty and

would instead have gone to trial.

We review Ward’s habeas claim under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

28 U.S.C. § 2254. To be entitled to relief under AEDPA,

Ward must demonstrate that the state court decision

denying his claim was either “contrary to, or involved

an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1); see Jones v. Wallace,

525 F.3d 500, 503 (7th Cir. 2008). Here, the federal law

upon which Ward bases his claim is that of Strickland

v. Washington. Strickland’s familiar two-part test requires

a petitioner to demonstrate (1) that counsel’s performance

fell below “an objective standard of reasonableness,”

466 U.S. at 688, and (2) a “reasonable probability that, but

for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. To

satisfy Strickland in the context of a guilty plea, a petitioner must show that “counsel’s advice regarding the

plea was objectively unreasonable and that there is a

reasonable probability that but for counsel’s error, [petitioner] would not have pled guilty, but would have

insisted upon a trial.” Moore v. Bryant, 348 F.3d 238, 241

(7th Cir. 2003) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

We are not in a position to evaluate the merits of

Ward’s ineffective assistance claim, because the facts

relevant to Ward’s claim have never been developed. The

credibility of Ward’s allegations have never been tested,
No. 08-2809 11

nor has the testimony of attorneys Opgenorth or Klopp

ever been obtained. See Matheney v. Anderson, 253 F.3d

1025, 1040 (7th Cir. 2001) (“An adequate record is imperative to properly evaluate ineffective assistance claims.”);

see also Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (reasonableness inquiry is “circumstance-specific”). As the

Strickland court itself held, courts must “judge the reasonableness of counsel’s challenged conduct on the facts

of the particular case, viewed as of the time of counsel’s

conduct.” 466 U.S. at 690. Here, we do not have these

requisite facts. Ward has asserted in his § 2254 petition, under the penalty of perjury, that Opgenorth was

unwilling to move to withdraw his guilty plea. Ward

sought an evidentiary hearing at every level of his state

postconviction proceedings in order to attempt to

develop evidence to prove this assertion, but those requests were denied. Nor was he afforded an evidentiary

hearing in the district court below. Given this posture,

our inquiry is limited to whether Ward is entitled to an

evidentiary hearing to try and develop facts that

would support his petition.

AEDPA governs the availability of evidentiary hearings

on federal habeas review, and generally bars them

except in narrow exceptions inapplicable to Ward. See 28

U.S.C. §§ 2254(e)(2)(A), (B). But § 2254(e)(2)’s bar only

applies when the failure to develop the factual basis for

a claim is attributable to the petitioner. Williams v. Taylor,

529 U.S. 420, 435 (2000); Davis v. Lambert, 388 F.3d 1050,

1059-60 (7th Cir. 2004). Here, it is through no fault of

Ward that the factual basis of his claim has not been

developed. Ward diligently sought a Machner hearing at
12 No. 08-2809

every step in his state court proceedings, but those

requests were denied. Section 2254(e)(2) thus does not

bar an evidentiary hearing for Ward. Allen v. Buss, 558

F.3d 657, 664-65 (7th Cir. 2009) (§ 2254(e)(2) does not

block evidentiary hearing where state court did not

fully consider evidence petitioner had put forth); Davis,

388 F.3d at 1060 (§ 2254(e)(2) no bar where petitioner

was “diligent in pursuing his opportunities to develop

the necessary facts in state court.”).

With AEDPA posing no bar, Ward is entitled to an

evidentiary hearing in federal court if (1) he has alleged

facts which, if proved, would entitle him to habeas relief

and (2) the state courts, for reasons beyond his control,

never considered his claim in a full and fair hearing.

Davis, 388 F.3d at 1061; Matheney v. Anderson, 253 F.3d

1025, 1039 (7th Cir. 2001). For the reasons explained

below, we find that Ward has satisfied these requirements. Ward has alleged facts which if proven would

entitle him to habeas relief on his ineffective assistance

of counsel claim, and despite his efforts, the state courts

never considered the claim in a full and fair hearing.

1. Ward Has Alleged Facts Which, If Proved, Would

Entitle Him to Relief

Ward alleges that he instructed Opgenorth to file a

motion to withdraw his guilty plea, but that Opgenorth

disregarded these instructions. If it is true that Opgenorth

refused to file a motion to withdraw Ward’s plea despite

a direct instruction that he do so, his performance was

constitutionally ineffective under Strickland. Such con-
No. 08-2809 13

duct would fall below Strickland’s objective standard

of reasonableness, and it prejudiced Ward because there

was at least a reasonable probability that such a motion

would have succeeded.

a. Deficiency

As the state conceded at oral argument, if Opgenorth did

indeed refuse to heed a direct request, this conduct was

deficient. The decision whether or not to plead guilty is

a major one that rests ultimately with the client, and a

lawyer who disregards specific instructions as to such

a decision acts unreasonably. See Florida v. Nixon, 543

U.S. 175, 187 (2004) (defendant has “ultimate authority”

over decisions involving fundamental trial decisions

including whether to plead guilty (quoting Jones v.

Barnes, 463 U.S. 745, 751 (1983)); Wallace v. Davis, 362 F.3d

914, 920 (7th Cir. 2004) (“[m]any decisions during trial

fall to counsel by default or by virtue of superior knowledge, but the major ones . . . may be exercised personally,

if the accused wants to make rather than delegate these

vital choices”); cf. Flores-Ortega, 528 U.S. at 477 (lawyer

who disregards specific instructions to file a notice of

appeal acts unreasonably). If, on the other hand, it turns

out that Opgenorth strongly advised Ward not to withdraw the plea as a strategic matter, but did not

disregard any direct, unequivocal instructions, his conduct may well have been reasonable, particularly in

light of Strickland’s “strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.” 466 U.S. at 689; see also Brown v. Finnan,
14 No. 08-2809

598 F.3d 416, 423 (7th Cir. 2010). The circumstances of

what exactly transpired between Ward and Opgenorth

will be a determination for the district court to make

with the benefit of an evidentiary hearing at which credibility determinations can be made. See Flores-Ortega, 528

U.S. at 477; Matheney, 253 F.3d at 1040.

b. Prejudice

Assuming that Ward’s allegations are true and that

Opgenorth’s performance was objectively unreasonable,

Ward must also demonstrate that the refusal to file a

motion to withdraw his guilty plea prejudiced him.

Strickland, 466 U.S. at 694. To demonstrate prejudice,

Ward would have to show that (1) there was reasonable probability that, but for counsel’s errors, he would

not have pled guilty and would have insisted on going

to trial and (2) there was a reasonable probability that

the court would have granted his motion to withdraw

his guilty plea. Hill, 474 U.S. at 59; Moore, 348 F.3d at 241.

We find that Ward has satisfied these requirements.

As to Hill’s first requirement, Ward contends that he

would have gone to trial but for Opgenorth’s actions

because he had a viable defense against the charges he

faced. Ward claims that although he may have taken

customer money without performing any services in

return, he never intended to keep the money and always

meant to eventually complete the work. He argues that

the government therefore could not have proven intent,

a necessary element for a violation of the theft by contractor law. Wis. Stat. § 943.20(1)(b). We need not assess the
No. 08-2809 15

That said, the credibility of Ward’s claim that he wished to 2

go to trial is undercut by the fact that he made no such assertion

in state court at a time when one might have expected him to do

so. Ward was afforded an opportunity to speak during his

sentencing hearing, and at no time during his statements did he

(continued...)

likely success of such a defense; Ward’s claim that he

would have insisted on going to trial to pursue it is

enough at this juncture to satisfy the first prong of the

prejudice analysis. See Hill, 474 U.S. at 59; see also Holtan

v. Parratt, 683 F.2d 1163, 1170 (8th Cir. 1982) (prejudice

where attorney failed to act on defendant’s request to

withdraw a nolo contendre plea); cf. Castellanos v. United

States, 26 F.3d 717 (7th Cir. 1994) (prejudice where

lawyer failed to carry out client’s instruction to file an

appeal regardless of chances of success).

The district court concluded that Ward did not demonstrate prejudice because he never actually alleged that he

would have gone to trial but for Opgenorth’s alleged

errors. We disagree with this interpretation. While it is

true that Ward’s § 2254 petition does not explicitly state

that he would have insisted on going to trial, that to us

is the clear import of his claim that he wished to withdraw his guilty plea. The natural result of a plea withdrawal would have been to face trial on the charges

instead (and with the benefit of counsel on appeal, Ward

makes the point explicitly). This interpretation is particularly appropriate in light of our obligation to liberally

construe pro se submissions like Ward’s. See, e.g., McGee

v. Bartow, 593 F.3d 556, 566-67 (7th Cir. 2010).2
16 No. 08-2809

(...continued)

express a desire to go to trial or make any reference to a refusal

by Opgenorth to withdraw his plea. A district court need not

hold an evidentiary hearing when “the record refutes the

applicant’s factual allegations.” Schriro v. Landrigan, 550 U.S. 465,

474 (2007) (Strickland claim that counsel failed to investigate

mitigating evidence was refuted by record showing that

petitioner had instructed counsel not to do so); see also Totten

v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (no evidentiary

hearing necessary where petitioner’s assertion “flies in the face

of logic in light of . . . [facts] easily discernible from the record.”). The state does not argue, however, that Ward’s

factual allegations are refuted by the record, and while we

harbor some doubts about Ward’s ability to prove his assertion,

we do not discern anything in the record that directly contradicts his claim so as to preclude an evidentiary hearing. Cf.

Schriro, 550 U.S. at 476 (sentencing colloquy “plainly indicate[d]”

that petitioner had instructed counsel not to present mitigating

evidence, contradicting claim on habeas review that counsel

had unreasonably failed to do so).

Hill’s second requirement is a reasonable probability

that the state court would have granted a motion to

withdraw his guilty plea had one been filed. 474 U.S. at 59.

In Wisconsin, a defendant will be permitted to withdraw

his plea prior to sentencing if there is a “fair and just”

reason for doing so, and the prosecution will not be

“greatly prejudiced” by the withdrawal. State v. Barney,

570 N.W.2d 731, 735 (Wis. Ct. App. 1997). The state conceded at oral argument that it would not have been

prejudiced by a withdrawal of Ward’s guilty plea, so our

inquiry turns solely on whether a fair and just reason
No. 08-2809 17

exists for withdrawal under Wisconsin law. Wisconsin

courts have “consistently articulated a liberal rule” in

determining what constitutes a fair and just reason to

withdraw a plea. State v. Jenkins, 736 N.W.2d 24, 33-35

(Wis. 2007); see also State v. Garcia, 532 N.W.2d 111, 117

(Wis. 1995) (“confusion is a fair and just reason for withdrawal”); State v. Manke, 602 N.W.2d 139, 144 (Wis. Ct.

App. 1999) (granting plea withdrawal where defendant

“misunderstood his plea and received misleading

advice from his attorneys”).

Ward asserts that his confusion during his plea

hearing constitutes a fair and just reason to withdraw

the plea. A review of the plea hearing transcript does

create the impression that Ward may have been

confused about the plea he entered. Even after the judge

explained the difference between a no contest and guilty

plea to Ward, he continued to express confusion. Ward

further contends that Klopp did not resolve his confusion during the recess that followed, but instead

pressured him to enter the guilty plea. That said, Ward did

eventually indicate to the court that he understood the

difference between a guilty and no contest plea, and that

he wished to plead guilty.

We need not decide whether Ward’s assertions definitively constitute a “fair and just” basis for withdrawal of

his plea; we need only determine whether there was a

reasonable probability that a Wisconsin court would so

conclude. Hill, 474 U.S. at 59; see also Julian v. Bartley, 495

F.3d 487, 498 (7th Cir. 2007) (“[t]he chances of prejudice

need only be better than negligible.”). Given the broad
18 No. 08-2809

discretion Wisconsin courts have in this area, we find

that there is a reasonable probability that the trial court

would have found that there was fair and just reason

to permit Ward to withdraw his plea. See Jenkins, 736

N.W.2d at 33; see also Garcia, 532 N.W.2d at 117 (“confusion

is a fair and just reason for withdrawal”).

2. The State Courts Never Considered Ward’s

Claim in a Full and Fair Hearing

To be entitled to an evidentiary hearing, Ward must also

demonstrate that the state courts, for reasons beyond his

control, never considered his claim in a full and fair

hearing. Davis, 388 F.3d at 1061. It is clear that the state

courts did not consider Ward’s claim regarding

Opgenorth in any full and fair hearing. As we have

already discussed, Ward requested a Machner hearing at

every step in his state proceedings in order to develop the

factual basis for his assertions, but those requests were

denied. See id.; Jones, 525 F.3d at 503 (petitioner not at

fault for failing to develop factual record when state

courts refused his request for evidentiary hearing). Ward

has satisfied this requirement.

III. CONCLUSION

Ward is entitled to an evidentiary hearing regarding

his claim that Opgenorth rendered ineffective assistance

of counsel by refusing to file a motion to withdraw

Ward’s guilty plea. The case is REMANDED to the district
No. 08-2809 19

 We note the potential implications of the relief Ward seeks. 3

Ward has already served the custodial sentence set forth in

his plea agreement and is currently on supervised release. If it

is found that Ward is entitled to federal habeas relief, Ward

could get exactly what he seeks—withdrawal of his plea and a

trial instead. The state could conceivably reinstate all of the

charges against him, including those that had been dropped

pursuant to the plea agreement, exposing Ward to far more

potential prison time. Asked at oral argument whether Ward

wished to proceed in light of this risk, counsel represented that

he did. Still concerned about whether Ward truly understood

the potential implications of the relief he seeks, we instructed

counsel to again confer with Ward, and if he still wished to

proceed, to file a statement of intent so indicating. Counsel filed

a notice reiterating Ward’s “desire and intent” to pursue the

appeal shortly thereafter, and so we therefore proceed with

disposition of the case.

7-23-10

court with instructions to proceed with an evidentiary

hearing consistent with this opinion.3