Opinion
4:00CV3321
September 20, 2002
MEMORANDUM AND ORDER
This matter is before the court on the following filings by the petitioner, Dennis Krutilek: (1) filing no. 8, the Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("§ 2254 petition"); (2) filing no. 17, the Motion for Evidentiary Hearing; and (3) filing no. 20, the Motion for Appointment of Counsel. I find that filing nos. 17 and 20, the motions for an evidentiary hearing and appointment of counsel, should be granted as later discussed in this Memorandum and Order. I will defer ruling on the § 2254 petition until after the hearing.
TRIAL AND DIRECT APPEAL
The history of this case is set forth in State v. Krutilek, 573 N.W.2d 771 (Neb. 1998), aff'g, 567 N.W.2d 797 (Neb.App. 1997):
Dennis Krutilek was convicted for theft of movable property valued at over $1,500. Krutilek appealed his conviction, contending in part that the district court erred in denying his motions to dismiss a juror and to declare a mistrial because the juror was acquainted with the victim. The Nebraska Court of Appeals affirmed the conviction, see State v. Krutilek, 5 Neb. App. 853, 567 N.W.2d 797 (1997), and we granted further review on the issue of whether the trial court abused its discretion in denying Krutilek's motions to remove the juror and to declare a mistrial. We affirm.State v. Krutilek, 573 N.W.2d at 773. As summarized by the Nebraska Supreme Court, the facts underlying the offense and conviction include the following:
The petitioner was convicted by a jury on May 7, 1996, in the District Court of Dodge County, Nebraska. In separate proceedings, the trial judge found the petitioner to be an habitual criminal and imposed a sentence of 30 to 60 years of imprisonment.
Sometime during the night of September 16, 1995, a 1987 silver
Chevrolet Celebrity owned by Karen Goswick, and driven primarily by her daughter, Julie Goswick (Goswick), disappeared from a bank parking lot near the Eagle's Club in Fremont, Nebraska . . . .
On October 17, 1995, the car was found on property located outside of Fremont. The car had been stripped, and the engine was subsequently located at an automobile repair business. The owner of the business told the police that Krutilek had sold the engine to him on or about September 28, 1995.
Krutilek was arrested and charged with theft of movable property valued over $1,500. See Neb. Rev. Stat. § 28-511(1) (Reissue 1995). Theft of such property is a Class III felony. It was further alleged that Krutilek was a habitual criminal under Neb. Rev. Stat. § 29-2221 (Reissue 1995).
Id. at 773.
Krutilek's defense was that he had not stolen the car. Rather, Krutilek testified that Goswick had asked him to take the car in order to hide it from her ex-husband, that Goswick had given Krutilek a key to the car, and that she paid him to take the car. Krutilek stated Goswick later told him to keep the car. Krutilek's girl friend testified that she saw Goswick give a car key to Krutilek and heard her ask him to take the car. Krutilek denied taking the engine out of the car, but admitted to selling the engine. However, another witness testified that she saw Krutilek remove the engine from the car.
Id. at 774.
Denial of Motions to Dismiss Juror Holck and to Declare a Mistrial
On direct appeal, the Nebraska Supreme Court granted further review limited to whether the trial judge had abused his discretion in denying the petitioner's motions to remove a juror and to declare a mistrial. Id. at 773. The controversy concerning the juror arose after Karen Goswick testified at the petitioner's trial, and the juror, Mr. Holck, reported realizing that he knew Julie Goswick from the Eagle's Club. As recounted by the Nebraska Supreme Court, when the juror came forward, a discussion ensued in which the trial judge evaluated whether to dismiss the juror.
During Krutilek's trial, Karen Goswick was called as a witness for the prosecution. Following her testimony, a juror brought to the attention of the court that he might be acquainted with Goswick. Outside the presence of the jury, the court examined the juror as follows:
THE COURT: . . . I understand you may be acquainted with the last witness' daughter; is that correct?
[Juror]: Yes. I am a member of the Eagle's Club and I know her from down there. I didn't know her last name. THE COURT: Now, other than that you know her, is this a close personal relationship or just a casual acquaintance?
[Juror]: Casual. We visit down there.
THE COURT: Is there anything about that that would make you less than a fair and impartial juror? [Juror]: I can't say because —
THE COURT: Well —
[Juror]: We visited long enough, kind of friends.
THE COURT: Have you ever visited about this case?
[Juror]: No.
THE COURT: Well, I guess the answer is kind of up to you. All cases are difficult, you know. And all relationships are difficult. The question is: Ultimately is your mindset that you feel that you could be a fair and impartial juror both to Mr. Krutilek and to the State?
[Juror]: I would hate to say that our friendship would sway me.
THE COURT: And do you feel that you would do your best to set that aside?
[Juror]: I'll do my best.
Id. at 773-74.
In response to questions asked by Krutilek's attorney, the juror stated that he had known Goswick for over a year, that he also knew her from volunteer work he did at the Eagle's Club, and that he considered himself and Goswick to be friends. The juror also stated that he did not know Goswick's last name.
Krutilek moved to have the juror removed and moved for a mistrial. Both motions were overruled. The trial court ruled that the juror had indicated that he could set aside his friendship with Goswick and attempt to decide the case fairly and impartially. The trial court stated that the voir dire examination might have brought out the fact that the juror was acquainted with Goswick through a more complete identification of the victim and where she worked. Had that been the situation, the trial court further indicated that the juror would not have been disqualified by the court for cause.
Id. at 774.
The Nebraska Supreme Court reasoned that retention or rejection of a juror is a matter of discretion with the trial court. Id. at 775. Defining abuse of discretion as "reasons or rulings of a trial judge [which] are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition," the court concluded that the trial judge had not abused his discretion in retaining the challenged juror. Id. Furthermore, the court decided that retention of the juror did not deprive the petitioner of his right, secured by the Sixth Amendment to the United States Constitution, to a fair and impartial jury. Id. Evidence of Prior Convictions
The Nebraska Supreme Court did not review the petitioner's claim of unfair prejudice caused by the trial court's admission of evidence of the petitioner's prior convictions for automobile theft. However, the Court of Appeals did address that issue, stating in pertinent part:
Second, Krutilek contends that the trial court erred in allowing the State to produce evidence of his prior automobile theft convictions.
Section 27-404(2) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
In reviewing the actions of a trial court in admitting evidence of other crimes under § 27-404(2) to determine if there was unfair prejudice in the admission of evidence, an appellate court considers (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted . . . .
Krutilek's prior convictions were relevant to show, contrary to Krutilek's testimony, that he did not have permission to take Goswick's car, that Goswick did not want him to take the car in order to hide it from her exhusband, and that she did not eventually just give the car to Kutilek. The prior convictions also had the proper purpose of showing absence of mistake and intent to steal the automobile. The probative value of the evidence outweighs its prejudicial effect, and since the jury instructions are not part of the record before us, we are unable to determine whether a limiting instruction was given. In any event, it does not appear from the record that a limiting instruction was sought. Therefore, the trial court did not err in allowing the State to present evidence of Krutilek's two prior automobile theft convictions.State v. Krutilek, 567 N.W.2d 797, 864 (Neb.App. 1997).
POST-CONVICTION PROCEEDINGS
After the Nebraska Court of Appeals and the Nebraska Supreme Court denied the petitioner's direct appeal, he filed a post-conviction action pursuant to Neb. Rev. Stat. §§ 29-3001 et seq. in the District Court of Dodge County. The district court determined that the motion for post-conviction relief raised issues which had already been decided on direct appeal. Thereafter, on the petitioner's appeal from the denial of post-conviction relief, the Nebraska Court of Appeals in Case No. A98-550 granted the state's motion for summary affirmance. See Neb. Ct. R. of Prac. 7B(2) ("A motion to affirm on the ground that the questions presented for review are so unsubstantial as not to require argument may be filed after the appellant's brief has been filed or the time for filing has expired . . . ."). On November 16, 1998, the Nebraska Supreme Court denied further review.
While his direct appeal was pending, on September 4, 1998, the petitioner filed a Motion for New Trial Based on Newly Discovered Evidence. The evidence consisted of additional testimony from new witnesses in support of the petitioner's defense that Julie Goswick had given him the key to her car and had asked him to hide it from her former husband. After an evidentiary hearing, the district court found the evidence insufficient to warrant a new trial and denied the motion on March 17, 1999. In Case No. A99-338, the Nebraska Court of Appeals, on September 3, 1999, affirmed the denial of a new trial.
After filing a "mixed petition" for habeas corpus in this court, the petitioner returned to state court to exhaust additional claims. See Rose v. Lundy, 455 U.S. 509 (1982) (a "mixed petition" asserts both unexhausted and exhausted claims). The petitioner filed a second motion for post-conviction relief in the Dodge County District Court on May 1, 2000, which the court denied. After the state moved for summary affirmance, the Nebraska Court of Appeals in Case No. A00-527 summarily affirmed the district court's decision pursuant to Neb. Ct. R. of Prac. 7B(2). The Nebraska Supreme Court denied further review.
See Case No. 4:99CV3305 (D. Neb. 1999).
§ 2254 CLAIMS
In his § 2254 petition (filing no. 8), the petitioner asserts claims which may be generally grouped and characterized as follows:
Denial of Right to an Impartial Jury
The petitioner alleges that his jury was unconstitutionally selected and empaneled: (a) because juror Holck never unequivocally stated that he could set aside his friendship with the victim and render an impartial verdict; (b) because the jury panel did not include an alternate who could have served if the trial court had dismissed juror Holck; and (c) because the record of the voir dire reflects that 5 other jurors expressed doubt about their ability to render an impartial verdict.
As to Claim No. I(c), the record of the voir dire indicates that the petitioner's trial counsel elicited honest answers from prospective jurors about possible bias based on their previous experiences as victims of theft. Seven jurors expressed uncertainty as to whether they could be impartial. Nevertheless, trial counsel passed the jury for cause. In the course of exercising her 6 peremptory challenges, counsel struck 2 of those 7 jurors, leaving 5 on the panel despite their expressions of doubt. The statements during voir dire of the jurors who remained on the panel consisted of the following:
Juror Ackerman first acknowledged experiencing anger after a robbery.
Counsel: Do you think that would interfere with . . . your abilities to sit impartially on a jury for a defendant that has been charged with a crime of theft?
Juror Ackerman: Well —
Counsel: Do you think it might?
Juror Ackerman: It might.
Counsel: Does anyone else believe that they might — Sir.
Juror Greenfield: "My car was broken into."
Counsel: Anybody else? Ma'am?
Juror Lannin: In my 30 years of employment . . . we have had several stores that have been broken into."
Juror Lannin acknowledged anger as result of the store robberies.
Counsel: Do you think you could sit here and be an impartial juror on this case here today?
Juror Lannin: Probably.
Counsel: Anyone else? Ma'am?
Juror Barton: We just had some personal items stolen from our family. They were never caught.
Counsel: How did that make you feel that they weren't caught?
Juror Barton: Angry.
Counsel: Do you think you could sit here and be impartial on this case?
Juror Barton: I honestly don't know.
Counsel: You don't know?
Juror Barton: I don't know.
Counsel inquired about personal beliefs concerning the legal system.
Juror Lewis: I believe that the sentences are — I don't think that the sentences are harsh enough to fit some of the crimes.
Counsel: Okay. Do you believe that criminals have too many rights?
Juror Lewis: Yes, I do.
Counsel: Do you believe that you can sit here and be impartial on this case?
Juror Lewis: I would hope so. I can't answer that.
Regarding the right to an impartial jury, the Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a trial, by an impartial jury . . . ." In addition, Article III, § 2, cl. 3, of the Constitution provides: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . . ." The U.S. Supreme Court has stated that when the Court "deals with the content of [the jury trial] guarantee — the only one to appear in both the body of the Constitution and the Bill of Rights it is operating upon the spinal column of American democracy." Neder v. United States, 527 U.S. 1, 30 (1999). The petitioner alleges that counting juror Holck, fully half of the jurors empaneled for his trial expressed uncertainty about their ability to put their experiences aside and render an impartial verdict.
Denial of Fair Trial and Due Process Resulting from Evidence of Prior Convictions and Absence of Cautionary Instruction
The petitioner contends that the trial court erred by overruling defense counsel's objection to the state's motion to present evidence of the petitioners two prior convictions for automobile theft. According to the petitioner, the prejudice to him substantially outweighed any probative value of the evidence, thereby denying the petitioner a fair trial by an impartial jury, as guaranteed by the Sixth Amendment, and depriving him of due process under the Fourteenth Amendment. In addition, the prosecutor allegedly compounded the prejudice to the petitioner by misconduct during closing argument, i.e, making prejudicial remarks emphasizing the petitioners history of automobile theft.
According to the petitioner, the trial court also erred in failing to give a cautionary instruction regarding the evidence of the petitioner's prior convictions, thereby denying the petitioner a fair trial and due process. The record indicates that defense counsel did not move for a cautionary instruction, and the trial judge did not give one. Moreover, the final instructions to the jury contained no limiting instruction. Therefore, according to the petitioner, no instruction prohibited the jury in the instant case from believing that the evidence of the petitioners other crimes tended to prove his character and his propensity to act in conformity with the prior offenses.
Regarding the evidence of other crimes, "[a] state court's evidentiary rulings can form the basis for federal habeas relief under the due process clause only when they were so conspicuously prejudicial or of such magnitude as to fatally infect the trial and deprive the defendant of due process." Bounds v. Delo, 151 F.3d 1116, 1119 (8th Cir. 1998) (citations omitted), citing Parker v. Bowersox, 94 F.3d 458 (8th Cir. 1996) (evidence of prior bad acts not sufficiently prejudicial to fatally infect the trial), cert. denied, 520 U.S. 1171 (1997). See also Robinson v. LaFleur, 225 F.3d 950. 954 (8th Cir. 2000) (generally state court evidentiary rulings may not be reviewed in a federal habeas corpus proceeding absent error of a magnitude sufficient to deprive the defendant of due process).
Defective Amended Information
The petitioner alleges that the Amended Information was fatally defective because Count I alleged theft of property "having a value of $1,500.00, in violation of § 28-511(1), R.R.S. Neb., a Class III felony." (Emphasis added.) The petitioner asserts that theft of property with a value of $1,500 or less is a Class IV felony under Nebraska law, and theft of property valued in excess of $1,500 constitutes a Class III felony. Accordingly, the petitioner claims a violation of due process because, despite the language of the Amended Information, the jury determined the value of the stolen vehicle as $2,825, the amount the insurance company paid the owner of the vehicle, and that amount exceeded $1,500. I do not view this claim as meritorious, as I find that the Amended Information provided the petitioner with sufficient notice of the charged offense.
Ineffective Assistance of Counsel
The petitioner alleges that he received ineffective assistance of counsel during his trial for a multitude of reasons. He maintains that his trial attorney should have: challenged jurors for cause who expressed uncertainty about their ability to be impartial; conducted a more thorough voir dire; challenged the absence of an alternate on the jury panel; moved fora cautionary instruction limiting the jury's use of the evidence concerning the petitioner's other crimes; objected and moved for a mistrial when the prosecutor, during closing argument, made prejudicial remarks about the petitioner's history of automobile theft and presented a theory, unsupported by the evidence, as to how the petitioner had obtained a key to the Goswicks' vehicle. The petitioner also alleges errors by trial counsel before trial, including failure to: move to quash the Amended Information; arrange a plea agreement; investigate, depose and subpoena certain witnesses; and employ experts.
"In order to prevail on his ineffective assistance claim, [the petitioner] must show that counsel `made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment,' and that `counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' . . . . Further, appellant `must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Robinson v. LaFleur. 225 F.3d 950. 953 (8th Cir. 2000). Thus, the petitioner bears the burden of proving his attorney's deficient performance and resulting prejudice. To establish prejudice, he must demonstrate that absent counsel's errors, there exists a reasonable probability that the result of the proceeding would have been different. Parker v. Kemna, 260 F.3d 852, 854 (8th Cir. 2001).
Regarding allegations of ineffective assistance of counsel, the Supreme Court employs a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 689-90 (1984):
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."466 U.S. at 689.
A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.466 U.S. at 690.
EXHAUSTION
28 U.S.C. § 2254 affords habeas corpus relief to "a person in custody pursuant to the judgment of a State court [who] is in custody in violation of the Constitution or laws of the United States." Id. § 2254(a). However, ordinarily a habeas corpus petitioner's federal claims must first be presented to the state courts. See 28 U.S.C. § 2254(b)(1), which states:
(1) 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 unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
In O'Sullivan v. Boerckel, 526 U.S. 838 (1999), the United States Supreme Court explained: "Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts . . . state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process" before filing for federal habeas relief. Id. at 845. Thus, exhaustion requires that a prisoner "fairly present" the substance of each federal constitutional claim to the state courts before seeking federal habeas relief. Id. at 844.
The respondent seeks dismissal of many of the petitioner's claims on the ground that they have not been decided, or even addressed, by the Nebraska appellate courts. However, in O'Sullivan v. Boerckel, the Supreme Court explained that "[s]ection 2254(c) requires only that state prisoners give state courts a fair opportunity to act on their claims." Id. at 844 (emphasis in original). Comity requires state prisoners to "give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." Id. at 845.
The petitioner presented his arguments regarding all of the foregoing claims by no later than his second motion for post-conviction relief. The fact that the appellate courts granted the state's motions for summary affirmance does not negate the petitioner's presentation of the claims on appeal. The petitioner therefore satisfied the "fair presentation" requirement of O'Sullivan v. Boerckel by giving the state appellate courts a fair opportunity to act on his claims. By not later than the appeal from his second motion for post-conviction relief, the petitioner set forth the claims, legal theories and supporting facts substantially equivalent to all of the claims he now asserts in his § 2254 petition.
PROCEDURAL DEFAULT
Nevertheless, the respondent contends that most of the claims asserted in the petitioner's second motion for post-conviction relief were procedurally defaulted because the petitioner had failed to raise those claims on appeal or in his first motion for post-conviction relief. See generally Murray v. Hvass, 269 F.3d 896, 898 (8th Cir. 2001)' cert. denied, 122 S.Ct. 1313 (2002) (citations omitted): "[A] district court is precluded from considering any issue that a state court has already resolved on an independent and adequate state ground. . . . This includes cases in which the state judgment turns on an independent and adequate state procedural ground, such as when a state court has determined that a claim has been lost because of default. . . . This rule is nearly absolute, allowing exceptions only when a habeas petitioner can `demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law,' . . . or when the petitioner can show actual innocence . . . ."
The same attorney represented the petitioner at trial and on direct appeal. Therefore, the petitioner was not required to raise allegations of ineffective assistance of trial counsel until his motions for post-conviction relief. See, e.g., State v. Williams, 609 N.W.2d 313, 318 (Neb. 2000): "When a plaintiff seeking postconviction relief has different counsel on appeal than at trial, the plaintiffs motion for postconviction relief is procedurally barred if the plaintiff (1) knew of the issues assigned in the postconviction motion at the time of the plaintiffs direct appeal, (2) failed to assign those issues on direct appeal, and (3) did not assign as error the failure of appellate counsel on direct appeal to raise the issues assigned in the postconviction motion."
In addition to the claims previously described, the petitioner asserts his actual innocence of the offense of conviction and also bases a habeas corpus claim on the state courts' denial of his Motion for New Trial Based on Newly Discovered Evidence.
Thus, "`[a] federal court conducting habeas corpus review must ordinarily refrain from reviewing any issue that a state court has already found to be defaulted on an adequate and independent state-law basis.'" Fann v. Bowersox, 247 F.3d 841 (8th Cir. 2001) (citation omitted). However, in the instant case, the Nebraska appellate courts summarily affirmed the denial of post-conviction relief, without opinion and pursuant to Neb. Ct. R. of Prac. 7B(2). Thus, the appellate courts determined "that the questions presented for review are so unsubstantial as not to require argument," but did not identify whether the claims were procedurally defaulted, or "unsubstantial" on the merits. As to each claim alleged to be procedurally defaulted, the respondent will have to show: that there is a state procedural rule with which the petitioner failed to comply, that the state courts actually enforced that procedural rule in the petitioner's case, and that the procedural rule constitutes an adequate and independent ground on which the state could rely to deny review of the petitioner's federal constitutional claims. The petitioner is then entitled to demonstrate (a) cause for the failure to comply with the procedural rule and prejudice resulting from the constitutional error, or (b) actual innocence of the offense.
STANDARD OF REVIEW
As for those claims which the Nebraska appellate courts did decide on the merits, 28 U.S.C. § 2254(d) establishes the following standard of review:
(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.
A "decision will be viewed under as `contrary to' clearly established federal law if the state court has applied a rule that directly contradicts Supreme Court precedent or has reached a result opposite to a result reached by the Supreme Court on `materially indistinguishable' facts. . . . As for an `unreasonable application' of the law, we must remember that unreasonable is not the same as incorrect. . . . The state court's application might be erroneous, in our `independent judgment,' `yet not unreasonable.'" Kinder v. Bowersox, 272 F.3d 532, 537-38 (8th Cir. 2001).
"The factual findings of the state court also may be challenged in a § 2254 petition, but they are subject to an even more deferential review. Relief may be granted if the state court adjudication `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.' 28 U.S.C. § 2254(d)(2). Factual findings by the state court `shall be presumed to be correct,' a presumption that will be rebutted only `by clear and convincing evidence.' Id. § 2254(e)(1)." Id. at 538.
EVIDENTIARY HEARING AND APPOINTMENT OF COUNSEL
Rule 8 of the Rules Governing Section 2254 proceedings in the United States District Courts states, in pertinent part:
Evidentiary Hearing
(a) Determination by court. If the petition is not dismissed at a previous stage in the proceeding, the judge, after the answer and the transcript and record of state court proceedings are filed, shall, upon a review of those proceedings and of the expanded record, if any, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the petition as justice shall require.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") sharply curtailed the circumstances in which a federal habeas court may order an evidentiary hearing. 28 U.S.C. § 2254(e)(2) states in pertinent part:
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.
Notwithstanding the limitations set by § 2254(e)(2), I find that an evidentiary hearing is warranted on the petitioners claims of ineffective assistance of counsel. The record supports the petitioners assertions as to specific acts and omissions by defense counsel. Nevertheless, counsel's decisions may not constitute deficient representation if they resulted from sound trial strategy.
Therefore, while I may entertain oral or written oral arguments on other claims and defenses, the claims of ineffective assistance of counsel are the only matters on which I will receive evidence. In accordance with 28 U.S.C. § 2254(e)(2), all other issues presented in the petitioners § 2254 petition will be decided on the basis of the state court record, the parties' pleadings and briefs, and the applicable law. Subject to those limitations, filing no. 17, the petitioners Motion for Evidentiary Hearing, is granted. In addition, counsel will be appointed for purposes of the hearing.
Rule 8(c) of the Rules Governing Section 2254 proceedings in the United States District Courts states, in pertinent part:
Appointment of counsel; time for hearing. If an evidentiary hearing is required the judge shall appoint counsel for a petitioner who qualifies for the appointment of counsel under 18 U.S.C. § 3006A(g) and the hearing shall be conducted as promptly as practicable, having regard for the need of counsel for both parties for adequate time for investigation and preparation.
(Emphasis added.)
The foregoing is a general outline of the principles on which this case will be decided.
THEREFORE, IT IS ORDERED:
1. That filing no. 8, the Amended Petition for Writ of Habeas Corpus filed by the petitioner, Dennis Krutilek, will be decided after the court holds an evidentiary hearing;
2. That filing no. 17, the petitioner's Motion for Evidentiary Hearing, is granted;
3. That filing no. 20, the petitioners Motion for Appointment of Counsel, is granted; and
4. That a hearing will be scheduled and counsel appointed by further order of the court.