99-3771 Boyko v. Parke

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“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. …

“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.”

Reversed and remanded.

Appeal from the United States District Court for the Northern District of Indiana, Sharp, J., Ripple, J.