context: In such circumstances the appropriate step is to remand the case for further proceedings (including an evidentiary hearing, if necessary) so that the district court can determine the merits of Newell's claims in the first instance.
citation_a.signal: see also
citation_a.identifier: 571 F.2d 314, 314
citation_a.parenthetical: finding due process violation where state made witnesses unavailable to testify and remanding for district court to determine whether their unavailability was prejudicial to defendant
citation_a.sentence: See Rice v. Bowen, 264 F.3d 698, 702 (7th Cir.2001) (“Because the district court’s conclusion with respect to timeliness had the effect of cutting off further development of the record and issues there ... the proper step is to remand the case to that court for further proceedings.”); see also Lockett, 571 F.2d at 314 (finding due process violation where state made witnesses unavailable to testify and remanding for district court to determine whether their unavailability was prejudicial to defendant). We note that § 2254(e)(2), which circumscribes a federal court’s ability to hold an evidentiary hearing if the petitioner has “failed” to develop the factual record in state court, does not apply here because Newell’s claims went undeveloped through no fault of his own.
citation_b.signal: see
citation_b.identifier: 264 F.3d 698, 702
citation_b.parenthetical: "Because the district court's conclusion with respect to timeliness had the effect of cutting off further development of the record and issues there ... the proper step is to remand the case to that court for further proceedings."
citation_b.sentence: See Rice v. Bowen, 264 F.3d 698, 702 (7th Cir.2001) (“Because the district court’s conclusion with respect to timeliness had the effect of cutting off further development of the record and issues there ... the proper step is to remand the case to that court for further proceedings.”); see also Lockett, 571 F.2d at 314 (finding due process violation where state made witnesses unavailable to testify and remanding for district court to determine whether their unavailability was prejudicial to defendant). We note that § 2254(e)(2), which circumscribes a federal court’s ability to hold an evidentiary hearing if the petitioner has “failed” to develop the factual record in state court, does not apply here because Newell’s claims went undeveloped through no fault of his own.