Clinkscale v. Carter

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Clinkscale v. Carter No. 02-4219 ELECTRONIC CITATION: 2004 FED App. 0213P (6th Cir.)

File Name: 04a0213p.06 Columbus, Ohio, for Appellee. ON BRIEF: Carol Wright, Columbus, Ohio, for Appellant. M. Scott Criss, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for UNITED STATES COURT OF APPEALS Appellee.

FOR THE SIXTH CIRCUIT MARTIN, J., delivered the opinion of the court, in which _________________ MOORE, J., joined. McKEAGUE, D. J. (pp. 26-34), delivered a separate opinion concurring in part and dissenting DAVID B. CLINKSCALE , X in part.

Petitioner-Appellant, -

- _________________ - No. 02-4219

v. - OPINION > _________________ ,

HAROLD E. CARTER , Warden, -

BOYCE F. MARTIN, JR., Circuit Judge. David B.

Respondent-Appellee. - Clinkscale, an Ohio prisoner, appeals the district court’s N denial of his petition for a writ of habeas corpus. For the Appeal from the United States District Court reasons stated below, we REVERSE the district court’s for the Southern District of Ohio at Columbus. judgment and GRANT a conditional writ of habeas corpus. No. 01-00390—Algenon L. Marbley, District Judge.

I. FACTUAL BACKGROUND1

Argued: December 3, 2003

In this capital case, a jury convicted Clinkscale of several Decided and Filed: July 8, 2004 felony counts, including armed robbery and homicide, stemming from an incident that occurred at the Columbus, Before: MARTIN and MOORE, Circuit Judges; Ohio, home shared by Kenneth Coleman – Clinkscale’s McKEAGUE, District Judge.* childhood friend – and Coleman’s wife, Todne Williams. At trial, Williams testified that she was awakened by the sound _________________ of gunshots at approximately 3:45 in the morning on September 8, 1997. According to Williams, a man – whom COUNSEL she ultimately identified as Clinkscale – proceeded to burst into her bedroom, armed with a pistol, and demanded to know ARGUED: Carol Wright, Columbus, Ohio, for Appellant. where she and her husband kept their safe. Williams testified M. Scott Criss, OFFICE OF THE ATTORNEY GENERAL, that Clinkscale then summoned another man – apparently his

1

*

As the facts of this case have been com prehensively recited in The Ho norable D avid W . McKeague, United States District Judge previous court decisions, we will highlight only those facts that are for the Western District of Michigan, sitting by designation. dispo sitive of the issues presented in this appe al.

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partner – to the bedroom, gave him the pistol and directed II. PROCEDURAL BACKGROUND him to watch her while Clinkscale looked for the safe. Williams further testified that after Clinkscale had located the In January 1998, attorneys Rogers and Benton were safe and loaded it into his truck, he retrieved his gun and appointed to represent Clinkscale at trial. Clinkscale ordered Williams to lie on the kitchen floor next to the body immediately informed them of his alibi and the individuals of her husband, Coleman, who had been fatally shot. At that who could corroborate it. The attorneys eventually hired, moment, Williams stated, she ran toward the back door and with funds approved by the trial court in March, an Clinkscale shot her three times. Despite her injuries, investigator named Richard Smith to gather evidence in an Williams was able to call 911. Notably, although Williams attempt to verify and corroborate Clinkscale’s claimed alibi. knew Clinkscale as a friend of her husband, she told the 911 operator that she could not identify her assailant. The investigator’s affidavit indicates that based upon his investigation – which primarily entailed interviewing Clinkscale, testifying in his own defense, maintained that defendant Clinkscale, Arthur Clinkscale, Bryan Fortner and he could not have committed the crimes as charged because Rhonda Clark – he believed that Clinkscale did, in fact, have he had spent the entire night of September 7 and morning of an alibi for which significant corroboration existed. The September 8 in Youngstown, Ohio – approximately one investigator’s affidavit further indicates that he discussed his hundred seventy miles from Columbus. Clinkscale testified investigation and conclusions with Clinkscale’s attorneys that he and his friend, Bryan Fortner, spent the evening at several times during the months leading up to the trial. Fortner’s home watching a professional football game on Nevertheless, the attorneys failed to inform the court or the television, and that Clinkscale’s girlfriend, Rhonda Clark, prosecution of an intention to present an alibi defense until joined them during the game. After the game, Clinkscale September 28, 1998 – only a few days before the jury was testified, he and Clark retired to an upstairs bedroom and empaneled – when they gave “verbal notice” to the court of remained there until early morning. According to Clinkscale, a “possible alibi.” he left Fortner’s home at approximately 5:00 or 5:30 in the morning, after Clark had left, and he drove ten to fifteen According to the investigator’s affidavit, on October 1, minutes to the home of his father, Arthur Clinkscale, where 1998, Clinkscale’s trial attorneys demanded that he provide he was living. them with a written report immediately. The investigator quickly completed his report and provided it to them on As discussed more fully below, the trial court excluded any Saturday, October 3. The report recounts the investigator’s other evidence concerning Clinkscale’s alleged alibi because interviews with Clinkscale and the three named alibi his trial attorneys, J. Tullis Rogers and Frederick D. Benton, witnesses. Specifically, the report states that Clark recalled Jr., failed to file a timely notice of alibi pursuant to Ohio Rule that at approximately 10:30 p.m. on September 7, she met of Criminal Procedure 12.1.2 Clinkscale at Fortner’s home and later went with Clinkscale to an upstairs bedroom, where the two remained until she left at approximately 4:00 or 4:30 a.m. Clark also apparently told 2 the investigator that prior to leaving she “nudged” Clinkscale Rule 12 .1 provid es:

W henever a defendant in a criminal case proposes to offer testimony to establish an alibi on his beh alf, he shall, not less than seven days before trial, file and serve upon the prosecuting attorne y a notice in writing of his intention to claim alibi.

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and told him that she had to go home, and that when she left The trial continued and Clinkscale was ultimately the bedroom Clinkscale was still asleep. The report also convicted. The jury declined to impose the death penalty, and provides that Fortner confirmed that Clinkscale spent the Clinkscale was instead sentenced to life imprisonment evening with him at Fortner’s home, that Clark came over without the possibility of parole. Clinkscale appealed his during the football game and that Clinkscale and Clark retired conviction to the Ohio Court of Appeals, alleging, among to an upstairs bedroom after the game. Finally, the report other claims, that his trial attorneys’ failure to file a timely indicates that Arthur Clinkscale stated that he witnessed his alibi notice constituted ineffective assistance of counsel in son arrive home at approximately 5:45 or 6:00 a.m. on violation of the Sixth Amendment. The Ohio Court of September 8, at which time the burglar alarm accidentally Appeals held that it was “unable to make a determination” went off and the two had a conversation. from the record whether the delay in filing the notice “was the result of trial strategy or was due to counsel’s ineffectiveness On October 6, after the jury was empaneled, Clinkscale’s as alleged,” and therefore suggested that Clinkscale assert this trial attorneys filed a written notice of alibi and identified claim in a motion for postconviction relief.4 The Ohio Court Arthur Clinkscale, Bryan Fortner and Rhonda Clark as of Appeals affirmed Clinkscale’s conviction, and the Ohio potential alibi witnesses. The trial judge refused, however, to Supreme Court dismissed his petition for review. allow any alibi evidence – other than defendant Clinkscale’s own testimony – because the notice of alibi was not filed On October 24, 2000, Clinkscale filed, pursuant to Ohio seven days prior to trial, as required by Rule 12.1.3 Rule of Criminal Procedure 33, a motion for leave to file a motion for a new trial, indicating that the grounds for the new trial included his trial attorneys’ failure to file a timely alibi 3 notice. The trial court denied the motion, the Ohio Court of Shortly after the announcement of this ruling, the following Appeals again affirmed and the Ohio Supreme Court again colloquy ensued:

denied Clinkscale’s petition for review.

THE COURT: Anything else before I call in the ju ry?

Clinkscale next sought relief in federal court. He filed the THE DEFENDANT: Y es, sir, Your Ho nor. I, David instant petition for a writ of habeas corpus in the United Clinkscale, feel that I have not been States District Court for the Southern District of Ohio that properly represented and I wish to have asserted various claims, one of which was that his trial new counsel if that’s possible.

attorneys’ failure to file a timely alibi notice and/or failure to THE COURT: That’s not possible. investigate his alibi in a timely manner deprived him of the effective of assistance of counsel, in violation of the Sixth THE DEFENDANT: W hy is that? If I feel I am not being properly represented, why can’t I get new counsel?

THE COURT: Because I said you cou ldn’t, that’s why. County than these two.” Clinkscale’s respo nse was: “Let’s roll then. I Sit down. have got faith in the m.”

4

The trial judge then proceeded to describe Ro gers’s and B enton’s The Ohio Court of Appeals never indicated the precise form that considerable educational and professional qualifications, concluding that Clinksc ale’s motion for post-conviction relief should take, nor the section “[i]f I was so inclined I couldn’t appoint two b etter lawyers in Franklin of the R evised Code under which it should be filed.

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Amendment. Adopting the magistrate’s recommendation, the 28 U.S.C. § 2254(d). district court denied the petition, but granted a certificate of appealability with respect to each of the issues that Clinkscale By its terms, this provision only applies to claims that were had raised in his petition. Despite the numerous claims “adjudicated on the merits in State court proceedings.” Id. presented in the petition, we need only address Clinkscale’s See also Maples, 340 F.3d at 436; Newton v. Million, 349 claim that his trial attorneys’ failure to file a timely alibi F.3d 873, 878 (6th Cir. 2003). In this case, no state court has notice constituted ineffective assistance of counsel in adjudicated the merits of Clinkscale’s ineffective assistance violation of the Sixth Amendment, as we find this claim to be claim. Therefore, the deferential standard of review set forth meritorious. in section 2254(d) is inapplicable. See, e.g., Maples, 340 F.3d at 436 (“Where, as here, the state court did not assess the III. ANALYSIS merits of a claim properly raised in a habeas petition, the deference due under [the Act] does not apply.”) (citing A. Standard of Review Williams v. Coyle, 260 F.3d 684, 706 (6th Cir. 2001));

Newton, 349 F.3d at 878 (same). Cf. Wiggins v. Smith, 123 S.

We review de novo the district court’s denial of Ct. 2527, 2542 (2003) (reasoning that because no state court Clinkscale’s petition for a writ of habeas corpus. Maples v. had determined whether the petitioner had demonstrated the Stegall, 340 F.3d 433, 436 (6th Cir. 2003) (“This court requisite prejudice under Strickland v. Washington, 466 U.S. applies de novo review to the decision of the district court in 668 (1984), its “review [of that issue was] not circumscribed a habeas corpus proceeding.”) (citing Harris v. Stovall, 212 by a state court conclusion . . . .”). F.3d 940, 942 (6th Cir. 2000)). The Antiterrorism and Effective Death Penalty Act governs our review of Accordingly, we review Clinkscale’s ineffective assistance Clinkscale’s petition. 28 U.S.C. § 2254. Section 2254(d) of claim de novo, Maples, 340 F.3d at 437, and consider “the the Act provides as follows: totality of the evidence – ‘both that adduced at trial, and the evidence adduced in the habeas proceeding[s],’” Wiggins, (d) An application for a writ of habeas corpus on behalf 123 S. Ct. at 2542-43 (quoting Williams v. Taylor, 529 U.S. of a person in custody pursuant to the judgment of a State 362, 397-98 (2000)) (emphasis provided in Wiggins). Before court shall not be granted with respect to any claim that considering the merits of Clinkscale’s ineffective assistance was adjudicated on the merits in State court proceedings claim, however, we first address the preliminary questions of unless the adjudication of the claim– whether Clinkscale has exhausted his state remedies and whether the claim has been procedurally defaulted.

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly B. Exhaustion established Federal law, as determined by the Supreme Court of the United States; or In general, we may grant a petition for a writ of habeas corpus only if “it appears that . . . the applicant has exhausted (2) resulted in a decision that was based on an the remedies available in the courts of the State . . . .” 28 unreasonable determination of the facts in light of the U.S.C. § 2254(b)(1). Notably, the state never raised an evidence presented in the State court proceeding. exhaustion argument in the district court. Similarly, in these proceedings, the state’s only reference to exhaustion is a one-

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sentence, passing reference in its brief. Carter Br. at 14. Comity, in these circumstances, dictates that [the petitioner] Nevertheless, the Act provides that the state cannot waive or use the State’s established appellate review procedures before be estopped from relying upon the exhaustion requirement he presents his claims to a federal court.” Id. According to except if the state, through counsel, “expressly waives the the Court, “a petition for discretionary review in Illinois’ requirement,” see 28 U.S.C. § 2254(b)(3), which has not been Supreme Court is a normal, simple, and established part of the done here. We possess the authority to raise and consider the State’s appellate review process.” Id. Therefore, the Court issue of exhaustion sua sponte, Harris v. Rees, 794 F.2d concluded that in order to exhaust his state remedies, the 1168, 1170 (6th Cir. 1986), and we invoke that authority to petitioner was required to file a petition for discretionary consider whether Clinkscale has exhausted his state law review with the Illinois Supreme Court. Id. In line with the remedies. Court’s reasoning in O’Sullivan, we have held that “[t]o exhaust his or her remedies, a petitioner for federal habeas The Act provides that “[a]n applicant shall not be deemed corpus relief is only required to raise his claims before the to have exhausted the remedies available in the courts of the state’s highest court.” Manning v. Alexander, 912 F.2d 878, State, within the meaning of this section, if he has the right 883 (6th Cir. 1990). under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). The Supreme Additionally, a petitioner must have “‘fairly presented’ the Court has explained that “[a]lthough this language could be substance of each of his federal constitutional claims to the read to effectively foreclose habeas review by requiring a state courts . . . .” Hannah v. Conley, 49 F.3d 1193, 1196 (6th state prisoner to invoke any possible avenue of state court Cir. 1995) (citations omitted). See also O’Sullivan, 526 U.S. review, we have never interpreted the exhaustion requirement at 844 (section 2254(c) “requires only that state prisoners give in such a restrictive fashion.” O’Sullivan v. Boerckel, 526 state courts a fair opportunity to act on their claims”) U.S. 838, 844 (1999) (citation omitted) (emphasis in original). (emphasis in original); Manning, 912 F.2d at 881 (“The Rather, the Court has described the exhaustion requirement as exhaustion requirement is satisfied when the highest court in follows: the state in which the petitioner was convicted has been given a full and fair opportunity to rule on the petitioner’s claims.”).

Because the exhaustion doctrine is designed to give the As we have explained: state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to A petitioner can take four actions in its brief which are the federal courts, we conclude that state prisoners must significant to the determination as to whether a claim has give the state courts one full opportunity to resolve any been fairly presented: (1) reliance upon federal cases constitutional issues by invoking one complete round of employing constitutional analysis; (2) reliance upon state the State’s established appellate review process. cases employing federal constitutional analysis;

(3) phrasing the claim in terms of constitutional law or in O’Sullivan, 526 U.S. at 845. terms sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging facts well In O’Sullivan, the Court considered whether the petitioner within the mainstream of constitutional law.” had exhausted the remedies that were available to him in the Illinois courts. The Court reasoned that “Illinois’ established, Newton, 349 F.3d at 877. See also Levine v. Torvik, 986 F.2d normal appellate review procedure is a two-tiered system. 1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993) (“A

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petitioner ‘fairly presents’ his claim to the state courts by ineffectiveness, that avenue of relief was unnecessary for citing a provision of the Constitution, federal decisions using purposes of exhausting his ineffective assistance of counsel constitutional analysis, or state decisions employing claim. constitutional analysis in similar fact patterns.”).

That the Ohio Court of Appeals declined to reach the merits In this case, Clinkscale presented his ineffective assistance of the ineffective assistance claim – and instead suggested claim to the Ohio Court of Appeals on direct appeal of his that the claim be raised in a motion for post-conviction relief conviction. When the Ohio Court of Appeals denied relief on – does not alter our conclusion that Clinkscale exhausted his this claim – purportedly on the ground that the record was state remedies. First, it is beyond peradventure that insufficient to permit a determination whether the alleged exhaustion does not require a state court adjudication on the error was part of Clinkscale’s attorneys’ “trial strategy” – merits of the claim at issue. Smith v. Digmon, 434 U.S. 332, Clinkscale filed a petition for review of that decision in the 333 (1978) (“It is too obvious to merit extended discussion Ohio Supreme Court. When the Ohio Supreme Court that whether the exhaustion requirement of 28 U.S.C. § dismissed the petition, Clinkscale had fulfilled his obligation 2254(b) has been satisfied cannot turn upon whether a state of invoking “one complete round of the State’s established appellate court chooses to ignore in its opinion a federal appellate review process.” O’Sullivan, 526 U.S. at 845. constitutional claim squarely raised in petitioner’s brief in the state court . . . .”); Manning, 912 F.2d at 883 (“The fact that Clinkscale had also “fairly presented” the legal and factual the state court does not address the merits of the claim[s] does bases of his ineffective assistance claim to the Ohio courts. not preclude a finding of exhaustion.”) (citing Harris, 794 Hannah, 49 F.3d at 1196. Clinkscale’s brief in support of his F.2d at 1173). direct appeal explicitly presents this claim as the fourth assignment of error, which reads as follows: Second, we are aware of no legal authority holding that a petitioner who properly and fairly presents a claim on direct Defendant-Appellant was denied his right to the effective appeal to the state’s intermediate appellate court and highest assistance of counsel guaranteed to him under U.S. court, but who fails to file a later collateral motion as Const. amend. VI and XIV and Ohio Const. art. I, § 10 suggested by the intermediate appellate court, has failed to based upon the following: . . . (c) defense counsel failed exhaust state remedies. To impose such an onerous and to file a timely notice of alibi resulting in the exclusion unjustified burden upon a petitioner in the absence of any of the third party corroborating alibi testimony . . . . explicit authority establishing such a requirement would be imprudent, unwarranted and manifestly unfair.5 The brief goes on to cite Strickland v. Washington, 466 U.S. 668 (1984), as controlling legal precedent, and to set forth and develop the facts that allegedly establish the constitutional 5 violation. By taking these actions, Clinkscale “fairly No tably, when Clinksc ale gave the state courts a further oppo rtunity presented” his ineffective assistance claim to the Ohio courts. to review his ineffective assistance claim – via the post-conviction new trial motion – the Ohio Court of Appe als essentially chastised him for See, e.g., Newton, 349 F.3d at 877; Levine, 986 F.2d at 1516. asserting this claim a second time in state court: Although Clinkscale subsequently filed in the state trial court a post-conviction motion for leave to file a motion for a new [A]s appellant co nced es, these issues were alrea dy raised by trial, which was based in part upon trial counsel’s alleged appellant on direct review. As such, there was nothing to be resolved by an evidentiary hearing, and the trial court did not err

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Third, a habeas petitioner need not exhaust any and all do not share this view. The magistrate’s report and remedies that are potentially available to him in state court. recommendation concededly contains a few isolated See O’Sullivan, 526 U.S. at 844-45 (holding that a petitioner statements that could be interpreted as pertaining to need only exhaust those remedies that comprise a state’s exhaustion – the most favorable of which, from the dissent’s “standard,” “established,” “normal” appellate review process) point of view, are listed in footnote one of the separate (citing Wilwording v. Swenson, 404 U.S. 249, 249-50 (1971) opinion. Those statements, however, are vague, hypothetical (per curiam) (rejecting the notion that a petitioner must and unclear, and are scattered throughout a five-page, invoke “any of a number of possible alternatives to state convoluted discussion of procedural default, not exhaustion, habeas . . . .”)). Here, as discussed, Clinkscale has invoked that improperly confuses the two doctrines. It was procedural and exhausted all levels of Ohio’s standard, established default, not exhaustion, that the state had argued, and it was appellate review process. procedural default, not exhaustion, that the magistrate’s report and recommendation analyzes (ultimately finding in Finally, under the somewhat unique facts of this case, the Clinkscale’s favor on that issue). While the dissent attempts stated reason that the Ohio Court of Appeals denied relief was to excise these isolated statements from the report and based upon a misunderstanding of the nature of the ineffective recommendation and to recast them as a clear ruling of nonassistance inquiry. According to the Ohio Court of Appeals, exhaustion, in our view no such ruling was made. Given our the reason it could not reach the merits of Clinkscale’s claim conclusion that the magistrate never held that Clinkscale had was that it was “unable to reach a determination as to whether failed to exhaust his state law remedies, there is no finding of the delay was the result of trial strategy or was due to non-exhaustion that must be left “undisturbed.” counsel’s ineffectiveness as alleged.” This explanation implies that if the delay was strategic, then it necessarily The separate opinion also asserts that our conclusion that could not constitute ineffective assistance of counsel. As Clinkscale exhausted his state remedies “flies in the face of explained more fully below, however, “[t]he relevant question the teaching of Castille v. Peoples, 489 U.S. 346, 350-51 is not whether counsel’s choices were strategic, but whether (1989).” But Castille is so distinguishable from the present they were reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, case that, if relevant at all, it actually lends further support to 481 (2000) (citing Strickland, 466 U.S. at 688). our conclusion. In Castille, the Court considered whether a habeas petitioner had exhausted his state remedies by Our dissenting colleague’s disagreement with our presenting his federal constitutional claims in two separate exhaustion holding stems in part from his view that the motions for allocatur to the Pennsylvania Supreme Court, magistrate ruled that Clinkscale had failed to exhaust his state without previously having sought any relief on those claims remedies, and that this ruling “must be left undisturbed.” We in any lower state court. In Pennsylvania, “allocatur review ‘is not a matter of right, but of sound judicial discretion, and an appeal will be allowed only when there are special and in denying ap pellant’s motion without such a hearing. . . . important reasons therefor.’” Id. at 347 (quoting Pa. R. App. Appellant conced es that these issues were previously raised on P. 1114). The Court held that the petitioner’s motions for direct appeal, but purports to raise them again for purposes of allocatur, without more, were insufficient to constitute “fair preserving them fo r federal court review. Given ap pellant’s presentation” of his federal claims to the state courts. Id. at concession in this regard and our resolution of appellant’s first 351. According to the Court, “where the claim has been assignment of error, appellant’s second assignment of error is not well-taken and is overruled. presented for the first and only time in a procedural context in

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which its merits will not be considered unless ‘there are Third, the court must decide whether the state procedural special and important reasons therefor,’ . . . [r]aising the claim forfeiture is an “adequate and independent” state ground in such a fashion does not, for the relevant purpose, constitute on which the state can rely to foreclose review of a ‘fair presentation.’” Id. (citations omitted). federal constitutional claim. . . . Once the court determines that a state procedural rule was not complied Unlike the petitioner in Castille, Clinkscale raised his with and that the rule was an adequate and independent ineffective assistance of counsel claim on direct appeal, in state ground, then the petitioner must demonstrate . . . which there were no special limitations on the ability of the that there was “cause” for him to not follow the Ohio Court of Appeals to reach the merits of that claim.6 In procedural rule and that he was actually prejudiced by more general terms, the sole factor determining the outcome the alleged constitutional error. in Castille is entirely absent in this case. Thus, if Castille has any relevance here, it corroborates our conclusion that Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1985). Clinkscale has fairly presented his claim to the Ohio state courts. In this case, when the Ohio Court of Appeals declined to reach the merits of Clinkscale’s ineffective assistance claim C. Procedural Default on direct appeal, it did so because of its preference that the claim be raised in a post-conviction motion, not because of We now turn to the state’s argument that Clinkscale has Clinkscale’s failure to comply with a procedural rule. Under procedurally defaulted this ineffective assistance claim. Ohio law, claims alleging ineffective assistance of trial Under the procedural default doctrine, “[a] federal court is counsel are permitted to be raised on direct appeal, see State generally barred from considering an issue of federal law v. Perry, 226 N.E.2d 104 (Ohio 1967), and Clinkscale arising from the judgment of a state court if the state properly took advantage of that opportunity. The Ohio Court judgment ‘rests on a state-law ground that is both of Appeals’ decision denying relief does not even mention an ‘independent’ of the merits of the federal claim and an applicable procedural rule, let alone “clearly and expressly ‘adequate’ basis for the [state] court’s decision.’” Frazier v. state[] that its judgment rests on a state procedural bar.” Huffman, 343 F.3d 780, 790 (6th Cir. 2003) (quoting Harris, Frazier, 343 F.3d at 791 (quoting Harris, 489 U.S. at 263). 489 U.S. at 260). See also Coleman v. Thompson, 501 U.S. Therefore, not even the first Maupin procedural default factor 722, 729-30 (1991). We apply a four-part test in determining is satisfied. whether a habeas claim has been procedurally defaulted:

As discussed, Clinkscale’s further attempt to obtain relief First, the court must determine that there is a state in state court – i.e., his filing of a post-conviction motion for procedural rule that is applicable to the petitioner’s claim leave to file a motion for a new trial – was entirely and that the petitioner failed to comply with the rule. . . . unnecessary for purposes of preserving federal court review, Second, the court must decide whether the state courts and is irrelevant to our analysis of procedural default. actually enforced the state procedural sanction. . . . Clinkscale could have asserted his ineffective assistance claim in a habeas petition filed in federal court as soon as the Ohio Supreme Court dismissed his petition for review of the Ohio 6 Court of Appeals’ denial of relief on direct appeal. Therefore, As we have explained, Clinkscale then proceeded to seek further even if the Ohio Court of Appeals, in affirming the denial of review in the O hio Supreme C ourt, but to no avail.

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Clinkscale’s post-conviction new trial motion, refused to (Emphasis added.) address the merits of his ineffective assistance claim because of a failure to comply with a state procedural rule, that would The Ohio Court of Appeals then proceeded to analyze not bar federal court review of Clinkscale’s ineffective Clinkscale’s two assignments of error, which were: assistance claim. In other words, because on direct appeal Clinkscale properly exhausted his state remedies and did not [1] The trial court erred in failing to grant leave to file commit a procedural default, he never had to file a subsequent a motion for new trial or at a minimum, hold an post-conviction motion in state court; thus, any procedural evidentiary hearing on the motion for leave, thereby default that may have occurred with respect to that later, denying appellant his Sixth Amendment right to the unnecessary post-conviction motion simply does not matter effective assistance of counsel, as guaranteed by the for purposes of this analysis. Our conclusion in this regard Fifth, Sixth and Fourteenth Amendments to the comports with the purpose of the procedural default rule. “In United States Constitution. the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of [2] Appellant was denied the effective assistance of comity and federalism.” Coleman, 501 U.S. at 722. Those counsel as guaranteed by the Fifth, Sixth, Eighth, concerns are satisfied here because the Ohio courts were and Fourteenth Amendments to the U.S. given a full and fair opportunity to adjudicate and grant relief Constitution when trial counsel failed to timely file on Clinkscale’s federal constitutional ineffective assistance a notice of alibi, failed to object to . . . the claim on direct appeal, and they never refused, on procedural admission of other prejudicial acts, failed to object grounds, to rule on that claim. to misleading prosecutorial argument and failed to object to inadmissible hearsay evidence.

But even if we were to consider the post-conviction state court proceedings in our procedural default analysis, we With regard to Clinkscale’s first assignment of error, the court would conclude that no procedural default occurred in those held: proceedings. That is because the decision of the Ohio Court of Appeals affirming the denial of Clinkscale’s post- Here, the grounds underlying appellant’s motion for new conviction new trial motion did not “clearly and expressly trial were known at the time the verdict was rendered. state[] that its judgment rest[ed] on a state procedural Moreover, as appellant concedes, these issues were ground.” Harris, 489 U.S. at 263; Frazier, 343 F.3d at 791. already raised by appellant on direct appeal. As such, In its memorandum decision affirming the trial court’s denial there was nothing to be resolved by an evidentiary of the motion, the court began by characterizing the trial hearing, and the trial court did not err in denying court’s ruling as follows: appellant’s motion without such a hearing.

On October 24, 2000, the trial court denied appellant’s (Emphasis added.) As to Clinkscale’s second assignment of motion without a hearing, finding that appellant failed to error, the court held: satisfy the requirements under [Rule 33] for filing an Appellant concedes that these issues were previously untimely motion for a new trial and that appellant raised on direct appeal, but purports to raise them again merely sought to reargue issues previously raised in his for purposes of preserving them for federal court review. direct appeal.

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Given appellant’s concession in this regard and our presumption that, under the circumstances, the challenged resolution of appellant’s first assignment of error, conduct might be considered sound trial strategy.” Id. at 689. appellant’s second assignment of error is not well-taken The second prong of Strickland requires Clinkscale to and is overruled. demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of [his trial]

(Emphasis added.)7 would have been different. A reasonable probability is a probability sufficient to undermine confidence in the As the above-quoted language demonstrates, the Ohio outcome.” Id. at 694. Court of Appeals’ decision does not “clearly and expressly state[]” that it was based on non-compliance with Rule 33. We note at the outset that a number of courts have found Although the decision unquestionably mentions Rule 33 and ineffective assistance of counsel in violation of the Sixth its requirements, it also emphasizes and relies upon the fact Amendment where, as in this case, a defendant’s trial counsel that Clinkscale’s ineffective assistance claim had already been fails to file a timely alibi notice and/or fails adequately to raised on direct appeal. It is unclear on what ground, or investigate potential alibi witnesses. See, e.g., Blackburn v. grounds, the court’s judgment rested. Under these Foltz, 828 F.2d 1177 (6th Cir. 1987); Johns v. Perini, 462 circumstances, we are unable to say that the Ohio Court of F.2d 1308 (6th Cir. 1972) (applying pre-Strickland standard); Appeals’ decision “clearly and expressly states that its Brown v. Meyers, 137 F.3d 1154 (9th Cir. 1998); Bryant v. judgment rests on a state procedural bar.” Harris, 489 U.S. Scott, 28 F.3d 1411 (5th Cir. 1994). For the reasons stated at 263; Frazier, 343 F.3d at 791. below, the same result is compelled in this case.

For these reasons, Clinkscale has not procedurally defaulted With respect to the first prong of Strickland, the state relies his ineffective assistance claim. We now turn, therefore, to upon the conclusion of the district court (and the magistrate) the merits of that claim. that Clinkscale failed to present sufficient evidence to rebut the presumption that his attorneys’ failure to file a timely alibi D. Ineffective Assistance of Counsel notice was part of a “sound trial strategy.” Strickland, 466 U.S. at 489. What that conclusion fails to recognize, Our review of Clinkscale’s ineffective assistance claim is however, is that even if Clinkscale’s attorneys subjectively governed by the familiar two-prong test set forth in believed that failing to file an alibi notice on time was in Strickland. In order to satisfy the first prong, Clinkscale must some way strategic – which is doubtful8 – such a “strategy” prove that his counsel’s representation was deficient in that it cannot, under the circumstances presented in this case, be “fell below an objective standard of reasonableness.” considered objectively “sound,” id., or “reasonable,” Roe v. Strickland, 466 U.S. at 688. In considering this issue, we Flores-Ortega, 528 U.S. 470, 481 (2000) (“The relevant “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 8 Although Attorney Rogers’s October 13, 2000, affidavit – which appears somewhat self-serving – claims that “[t]he defense team made a strategic decision not to file a Notice of Alibi until we were sure that we 7 could back it up with credible witnesses and corroboration,” Attorney The Ohio Suprem e Court dismissed Clinkscale’s petition for review Benton’s July 26, 2002, affidavit admits: “I have no explanation for of this decision. failing to file the Notice timely. I believe it was error on our part.”

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question is not whether counsel’s choices were strategic, but As noted, Arthur Clinkscale’s affidavit states that he saw whether they were reasonable.”). his son “at approximately 5:45 to 6:00 a.m.” on September 8 when defendant Clinkscale returned home, and that “[w]hen At least where – as here – alibi is a critical aspect of a [defendant Clinkscale] entered the home[,] he accidentally set defendant’s defense, there is nothing reasonable about failing off the burglar alarm. We had a conversation and then to file an alibi notice within the time prescribed by the [defendant Clinkscale] went to his room.” The affidavit applicable rules when such failure risks wholesale exclusion further states: “I arranged for Bryan Fortner and Rhonda of the defense. In this case, there would have been nothing to Clark to be at my home to be interviewed by Mr. Smith [the lose, yet everything to gain, from filing the alibi notice in defense investigator] . . . . Both Mr. Fortner and Ms. Clark compliance with Rule 12.1. Such a course of action would were present and were interviewed by Mr. Smith. They have preserved Clinskcale’s right to assert an alibi defense, confirmed that [defendant Clinkscale] was in Youngstown the but at the same time would not have tied him into asserting evening of September 7, 1997 before he came home in the such a defense at trial. See Williams v. Florida, 399 U.S. 78, early morning hours of September 8, 1997.” Finally, the 84 (1970) (“Nothing in [a rule such as Rule 12.1] requires the affidavit confirms that Arthur Clinkscale had been, and defendant to rely on an alibi or prevents him from abandoning continues to be, willing to testify to these events at any trial the defense; these matters are left to his unfettered choice.”). or hearing.9 Therefore, based upon our consideration of counsel’s overall performance, and in view of all the facts in the record, we find In addition to Arthur Clinkscale’s affidavit, the record that Clinkscale has met his burden, under the first prong of contains other evidence – specifically, the investigator’s Strickland, of establishing that the performance of his trial affidavit and written investigative report – that provides some counsel fell below an objective standard of reasonableness. indication of the facts to which Arthur Clinkscale, Bryan Fortner and Rhonda Clark might have testified if called as Having found the first prong of Strickland satisfied, we alibi witnesses. As discussed, the investigator’s affidavit now consider the second. The district court held that states that based upon his investigation, he believed that Clinkscale “failed to demonstrate that he was prejudiced since defendant Clinkscale had an alibi that could be corroborated he has failed to offer an affidavit from the alleged alibi by these three witnesses and possibly others, and the witnesses demonstrating that they would have given testimony corroborating the alibi.” This holding is contrary to both law and fact. First, no legal authority has been 9 The state attacks the significance of Arthur Clinkscale’s affidavit on identified – and we are aware of none – specifically requiring the grounds that: (1) he is defendant Clinkscale’s father and therefore has that a defendant claiming ineffectiveness of counsel based on a motive to lie; and (2) the sub stance of his affidavit “only b arely the failure to file a timely alibi notice must produce an provide[s] an alibi for Clinksc ale” because “Clinkscale could certainly affidavit from the potential alibi witnesses documenting the have driven from Columbus to Youngstown in the hours between the shooting and the time his father allegedly saw him that mo rning.” S tate substance of their anticipated testimony. Second, and in any Br. at 16. These arguments are unavailing. In considering the event, the district court simply overlooked the fact that significance of this affidavit, our role is limited to determining whether Clinkscale has, in fact, submitted such an affidavit from one there is a “reasonable probability” that the outcome o f Clinkscale’s trial potential alibi witness: his father, Arthur Clinkscale. would have b een d ifferent bu t for his co unsel’s errors. Strickland, 466 U.S. at 694. T he factors that the state has highlighted may ultimately affect the credibility of Arthur Clinkscale’s testimony in the eyes of the jury, but they are not dispo sitive with respect to our analysis.

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investigative report details the substance of that witnesses,” however, Clinkscale’s testimony “left him corroboration. For example, the report indicates that: without any effective defense.” Id.10 (1) Arthur Clinkscale told the investigator essentially the same version of events as set forth in his affidavit; (2) Bryan Clinkscale’s claim of prejudice is further supported by the Fortner confirmed that Clinkscale and Clark were at Fortner’s notable weaknesses in the prosecution’s case. See Strickland, home throughout the evening and night of September 7, and 466 U.S. at 696 (explaining that “a verdict or conclusion only that Clinkscale and Clark retired to a bedroom after the three weakly supported by the record is more likely to have been watched a professional football game on television; and affected by errors than one with overwhelming record (3) Clark confirmed that she went to Fortner’s home on the support.”). By far the most damaging evidence against evening of September 7, and that she and Clinkscale spent the Clinkscale was the trial testimony of Williams, the surviving night there together until she departed at “approximately 4:00 victim, during which she identified Clinkscale as the a.m./4:30 a.m.” individual who shot her. Even putting aside our “grave reservations concerning the reliability of eyewitness But for Clinkscale’s attorneys’ failure to file the alibi notice testimony,” Blackburn, 828 F.2d at 1186 (citing Wilson v. in a timely manner, Clinkscale would have been permitted to Cowan, 578 F.2d 166, 168 (6th Cir. 1978)), the accuracy of call these – and other – witnesses to testify on his behalf. The Williams’s identification is highly suspect. As stated, undisputed evidence indicates that Arthur Clinkscale certainly Williams told a 911 operator just after the shooting that she would have testified to the events set forth in his affidavit and did not know the identity of the shooter, yet she has admitted the investigative report. Moreover, it is reasonable to assume, to knowing Clinkscale, as a friend of her husband, prior to the based upon the investigator’s affidavit and report, that Fortner night in question. Additionally, after eventually identifying and Clark also would have given testimony corroborating Clinkscale as the shooter, Williams identified his alleged Clinkscale’s alibi. As it was, Clinkscale’s only meaningful partner in crime as an individual named Darren Hornbuckle. defense – for which no evidence other than his own testimony The police conclusively determined, however, that was deemed admissible – was that he could not have Hornbuckle could not have been involved in the crimes. committed the crimes as charged because he was in These and other weaknesses in the prosecution’s case serve to Youngstown at the time with his close friend, Bryan Fortner, bolster Clinkscale’s claim of prejudice. See Strickland, 466 his girlfriend, Rhonda Clark, and his father, Arthur U.S. at 696. Moreover, because the central focus of Clinkscale. The fact that none of these individuals could Clinkscale’s trial was the identity of the perpetrator, the provide any corroboration for this alleged alibi certainly must evidence essentially boiled down to a credibility contest have significantly affected the jury’s assessment of between Williams and Clinkscale. Under these Clinkscale’s guilt. Had even one alibi witness been permitted circumstances, Clinkscale’s inability to provide any to testify on Clinkscale’s behalf, Clinkscale’s “own testimony would have appeared more credible because it coincided in important respects with those of his alibi witness[(es)].” 10 Additiona lly, had someone other than Clinkscale been permitted Brown, 137 F.3d at 1157. “[W]ithout any corroborating to testify that Clinkscale was in Youngstown at the time the crimes were committed, Clinkscale himse lf “could have e xercise d his right not to testify.” Pitts v. Le Cureux, 156 F.3d 1231, at *3 (6th Cir. 1998) (unpublished opinion). In that event, the jury would not have heard damaging testimony elicited from Clinkscale on cross-examination concerning his po ssession of firearm s.

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supporting testimony for his strongest defense must be _____________________________________________ considered especially damaging and prejudicial.

CONCURRING IN PART, DISSENTING IN PART For these reasons, we hold that Clinkscale has discharged _____________________________________________ his burden, under the second prong of Strickland, of proving that there is a “reasonable probability” that the outcome of his DAVID W. McKEAGUE, District Judge, concurring in trial would have been different but for his trial counsel’s part and dissenting in part. The majority opinion addresses deficient performance. Id. at 694.11 three issues: exhaustion, procedural default, and the merits of petitioner’s ineffective assistance of counsel claim.

IV. CONCLUSION Addressing the last of these issues first, I concur in the conclusion that the district court’s judgment denying the “The Sixth Amendment recognizes the right to the petition on the merits should be vacated. For the reasons that assistance of counsel because it envisions counsel’s playing follow, I am constrained to conclude, however, on the present a role that is critical to the ability of the adversarial system to record, that the Sixth Circuit is no less prohibited than the produce just results.” Id. at 685. Clinkscale’s trial attorneys district court from granting the writ – even conditionally. I played no such role in this case, and their actions have therefore concur in part and dissent in part. seriously undermined the fundamental fairness of Clinkscale’s trial and the justness of his conviction. For all I the foregoing reasons, we REVERSE the district court’s judgment and GRANT a conditional writ of habeas corpus, The district court reached the merits of petitioner’s giving the State of Ohio ninety days in which to retry ineffective assistance claim notwithstanding petitioner’s Clinkscale or release him from state custody. failure to exhaust available state court remedies, pursuant to 28 U.S.C. § 2254(b)(2), which allows a federal court only to deny, not grant, an unexhausted habeas petition. Report and recommendation, p. 25, J.A. 50. Applying Strickland v. Washington, 466 U.S. 668 (1984), the district court concluded petitioner had failed to carry his burden both of overcoming the strong presumption that counsel’s purported strategic choice not to give timely notice of alibi defense was reasonable; and of demonstrating that, even if counsel’s 11 The dissent takes issue with our decision to address the merits of performance was deficient, such deficiency so prejudiced Clinksc ale’s ineffective assistance claim, and believes that the more petitioner as to deny him a fair trial. Id. at 25-30, J.A. 50-55. app ropriate course of action would be to remand this case to the district For the reasons set forth in Part III.D of the majority opinion, court for an evidentiary hearing “to allow completion of the record” and for an analysis in the first instance of the merits of the claim . Aside from I, too, would hold the district court erred in its conclusion, the fact that neither party has requested remand, we see no purpo se for it. based on the record before it, that the ineffective assistance The existing record is sufficient to permit a decision on the merits of claim must be denied. Clinksc ale’s ineffective assistance claim, and the district court has already rendered such a decision – which, as we have explained, is erron eous. The record presented suggests petitioner has a colorable Under these circumstances, rem anding this case to the district court would claim, but the record is not sufficiently clear and complete to be an exercise in futility.

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enable a definitive ruling either way. The insufficiency of the Second, it could have dismissed the claim without prejudice, record is evident in the majority’s analysis. For instance, with because unexhausted, and allowed petitioner to pursue his respect to the first prong of the Strickland test, the majority remedies, potentially including an evidentiary hearing, in the recognizes the conflict between the affidavits of petitioner’s state courts. For reasons evident below, the first alternative two trial attorneys, one claiming that the late filing of the alibi is superior. Indeed, this is the course recently taken by the defense notice was the function of strategic choice, and the Sixth Circuit in Bigelow v. Williams, 367 F.3d 562 (6th Cir. other surmising that it was a matter of error by counsel. The 2004). Faced with a habeas claim based on ineffective record offers no explanation of the “strategic choice” and no assistance where counsel’s supposed strategic decision was, means of reconciling the two affidavits. The district court on the record presented, “unexplained, if not inexplicable,” id. resolved the difficulties by holding simply that petitioner has at 573, the Bigelow court remanded the matter to the district failed to carry his burden, while ignoring his request for an court for further proceedings, possibly including an evidentiary hearing. The majority, on the other hand, relies evidentiary hearing, to determine both prongs of the on its deduction that the unexplained strategic choice is “self- Strickland standard in the first instance. In “rushing to serving” and “doubtful.” Because the majority is unable to judgment” on the merits of petitioner’s claim, rather than conceive of a sound reason for the late filing of the notice, it remanding to the district court for clarification of the record, finds the “strong presumption” of Strickland adequately the majority simply declares the record to be sufficient and rebutted. then supplies the missing details with its own supposition and speculation. I respectfully submit that completion of the Similar ambiguities undermine evaluation of the second factual record is a task better committed to the district court. Strickland prong as well. In holding that petitioner had not shown prejudice, the district court noted that petitioner had Further, in refusing to recognize that deficiencies in the offered no proof of the nature of his putative alibi witnesses’ record are due in part to petitioner’s failure to exhaust an testimony or even that they would in fact have been available available state court remedy, the majority goes to great and willing to so testify. The majority correctly points out lengths to explain why petitioner’s failure to exhaust is no that the district court erroneously ignored the affidavit of one impediment to reaching the merits, reasoning even that the of the alibi witnesses, petitioner’s father. The majority exhaustion requirement has been satisfied, even though concedes that the father’s credibility is not unassailable, but neither party has challenged the district court’s contrary finds corroboration of petitioner’s alibi in an investigator’s conclusion in this appeal. In this regard, too, for the reasons affidavit and report. Using these sources, the majority set forth below, I find the majority’s approach flawed. launches into speculation regarding what “is reasonable to assume” and what the alibi witnesses “might have testified” II to if they had been called.

In analyzing the exhaustion issue, the majority purports to My purpose is not to attack the soundness of the majority’s write on a blank slate, observing that, although the respondent speculation, but to highlight the inadequacy of the present has not expressly asserted the defense, it is not waived and record. Faced with this inadequacy, the district court, in my may be raised sua sponte. Albeit true, this approach opinion, had two legitimate alternatives. First, it could have nonetheless ignores the fact that the district court first raised granted petitioner’s request for an evidentiary hearing, to the issue sua sponte and, in a ruling that remains allow completion of the record before evaluating the merits. unchallenged on appeal, held the exhaustion requirement had

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not been satisfied.1 It comes as no surprise that respondent has not challenged this conclusion on appeal, for it redounds to respondent’s benefit. Neither is petitioner’s silence on the issue surprising, as he even conceded in his petition that the 1 The district court’s ruling is reflected in the following excerpts from claim was unexhausted and actually moved the district court the magistrate judge’s report and recommendation, approved by the to stay proceedings on the petition pending exhaustion of district court over objection (on other grounds only): state remedies. Petition for writ of habeas corpus, ¶7, J.A. 8.

A federal cour t may grant relief on a petition for a writ of habeas corpus only if the applicant has exhausted the remedies The parties’ reasons for focusing their appellate arguments available in the state court. 28 U.S.C. § 22 54(b)(1)(A). on the merits of the claim, rather than exhaustion, are thus .... understandable. Nevertheless, these reasons do not justify our departure from the well-settled rule that issues not raised on Issues that must be raised in a post-conviction action appeal are deemed abandoned. See Mitchell v. Chapman, 343 pursuant to O.R.C. § 2953.21 include claims which do not appear on the face of the record and claims of ineffective F.3d 811, 825 n.15 (6th Cir. 2003); Security Watch, Inc. v.

assistance of trial counsel where the defendant was represented Sentinel Systems, Inc. 176 F.3d 369, 376 (6th Cir. 1999). If on direct appeal by the same attorney who represented him at the rule is adhered to, then the district court’s finding of nontrial . exhaustion must be left undisturbed. It follows that once we .... have determined the district court’s denial of the claim on its In addition to raising each claim in the appropriate forum, merits is flawed, but we refrain from remanding the matter for a habeas litigant, in order to preserve his constitutional claims reconsideration based on a fuller factual development, we are for habeas review, must present those claims all the way through left with a finding of non-exhaustion that should, ordinarily, the Ohio c ourts. in compliance with 28 U.S.C. § 2254(b)(1) and in the .... interests of comity, require dismissal of the claim pending Since petitioner did not actually file a post-conviction exhaustion. See Rockwell v. Yukins, 217 F.3d 421, 424-25 petition, the state courts did no t enforce a procedural bar, and it (6th Cir. 2000)(vacating judgment granting habeas relief and is not entirely clear that petitioner is barred from pursuing po st- remanding for dismissal without prejudice because petition conviction relief. . . . . Thus, Ohio law does not clearly foreclose contained unexhausted claim, even though meritorious claim consideration of a post-conviction petition. Although such a had been exhausted). petition would be untimely, the trial court could choo se to entertain it. Petitioner still has a remedy in state court if he can file a post-conviction action to assert this claim.

Yet, without even mentioning the district court’s treatment .... of the exhaustion issue, the majority takes it up de novo and finds that the claim is exhausted. In my opinion, the However, pursuant to 28 U.S.C. § 2254 (b)(2), [a]n majority’s approach is not only procedurally improper, but application for a writ of habeas corpus may be denied on the also substantively erroneous. The conclusion that the claim merits, notwithstanding the failure of the applicant to exhaust the reme dies av ailable in the courts of the state.”

is exhausted is based on the finding that the claim was, on direct review, “fairly presented” to the Ohio Court of Appeals Report and recommendation pp. 20 -25, J.A. 45 -50. Thus, the magistrate and Ohio Supreme Court. To reach this conclusion, the judge turned to analyze the merits of petitioner’s claim only after majority relies on the established principle that exhaustion determining that it was unexhausted and after recognizing that the district does not necessarily require state court adjudication of the court was free only to deny, not grant, the claim without first requiring exhaustion.

asserted claim, and that a claim that is fairly presented but

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ignored by the state court may be deemed exhausted. The appeal. This holding flies in the face of the teaching of facts of this case, however, do not come within this principle. Castille v. Peoples, 489 U.S. 346, 350-51 (1989). In Castille, the Supreme Court made it clear that presenting a claim for There is no dispute, of course, that petitioner did assert, on the first and only time in a procedural context in which its direct review, his ineffective assistance claim based on the merits will not necessarily be considered does not constitute late filing of the notice of alibi defense. The Ohio Court of “fair presentation.” Id. at 351. Indeed, as the majority Appeals did not decide the merits of the claim, but neither did recognizes, the exhaustion requirement demands that the state it ignore the claim. Its analysis is contained in one paragraph: courts be given a full and fair opportunity to rule on the factual, as well as the legal, bases of a claim. Caver v.

In his third claim, defendant maintains that counsel Straub, 349 F.3d 340, 346 (6th Cir. 2003); Newton v. Million, were ineffective for not timely filing defendant’s notice 349 F.3d 873, 877 (6th Cir. 2003); Hannah v. Conley, 49 F.3d of alibi. As noted, counsel did clearly indicate that they 1193, 1196 (6th Cir. 1995). Where, as here, petitioner’s factwere aware of the alibi witnesses before the disclosure based ineffective assistance claim was presented in a deadline set forth in Crim.R. 12.1; however, the record procedural context in which the merits were not considered contains no explanation of the reason behind the late because the factual record was incomplete, the claim can disclosure. For example, the record does not disclose hardly be deemed to have been “fairly presented.” See Hall whether trial counsel failed to investigate or to interview v. Huffman, 234 F.3d 1268 (Table), 2000 WL 1562821 at **3 defendant’s alleged alibi witnesses. As a result, we are (6th Cir. Oct. 11, 2000)(applying Castille under closely unable to reach a determination as to whether the delay analogous circumstances and remanding unexhausted claim was the result of trial strategy or was due to counsel’s for dismissal without prejudice). ineffectiveness as alleged. As the reason for the late disclosure is not a part of the record before this court, Accordingly, inasmuch as remand to the district court for defendant must pursue his claim of ineffective assistance reconsideration of the merits based on a fuller factual based upon the late disclosure by way of a motion for development is not acceptable to the majority, I would post-conviction relief. alternatively affirm the district court’s ruling that the claim is unexhausted and would therefore hold the claim subject to Ohio Court of Appeals Opinion, Dec. 23, 1999, p.19, J.A. dismissal without prejudice.2 417. The Ohio Supreme Court denied leave to appeal.

The Ohio courts thus refrained from reaching the merits of 2 In footnote 5 of the majority opinion, mention is made of the claim because the factual record was deemed incomplete. petitioner’s motion for new trial, made after his direct appeal was denied. Petitioner was expressly advised to pursue the claim by filing In this motion for new trial, petitioner did assert his ineffective assistance a motion for post-conviction relief, i.e., a mechanism that claim based on a supp lemented factual record . The motion had been would potentially allow for supplementation of the factual denied by the trial court as untimely and the appeal of this denial was record through an evidentiary hearing. pending when petitioner filed his habeas petition. It was due to the pendency of this appeal that petitioner admitted in his petition that the claim remained unexhausted.

Yet, quite apart from whether petitioner ever pursued the recommended motion, the majority holds that petitioner had During the pendency of the habeas petition in the district court, i.e., exhausted the claim simply by including it in his direct before both the report and recommendation and judgm ent issued , the Ohio Court of Ap peals and Ohio Supreme Court had finally denied ap pellate

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III the trial court’s denial and the appellate court’s affimance of the denial, the majority is “unable to say” the state courts Finally, for reasons derivative of the above exhaustion enforced a procedural bar because the state courts’ decisions analysis, I must take issue with the majority’s treatment of also rested on other grounds. procedural default as well. The district court rejected respondent’s procedural default defense essentially because The exact rationale for the Ohio Court of Appeals’ decision the subject claim had not been exhausted (through the filing affirming denial of the motion for new trial is concededly of an appropriate motion for post-conviction relief) and the ambiguous, at least in part. Its significance to our exhaustion state courts therefore did not have occasion to enforce a and procedural default analyses is therefore uncertain. The procedural bar.3 Without even acknowledging the district uncertainty is exacerbated by the unexplained failure of the court’s ruling on the issue and the rationale therefore, the parties and the district court to address it in any way. Yet, the majority likewise concludes that the Ohio appellate courts’ Ohio courts’ disposition of the motion for new trial is rejection of the claim on direct review was due not to potentially significant to both the exhaustion and procedural enforcement of a procedural bar, but due to the inadequacy of default analyses. These circumstances, too, counsel in favor the record. Ignoring the fact that the record was inadequate of remand to the district court for reconsideration, for because petitioner had not exhausted an available state ordinarily, the Sixth Circuit will not consider an issue not remedy, the majority nonetheless correctly concludes the decided below unless “the proper resolution is beyond doubt” claim cannot be deemed procedurally defaulted on the basis or “injustice might otherwise result,” neither of which of the direct review proceedings alone. circumstances is presented here. Baker v. Sunny Chevrolet, Inc., 349 F.3d 862, 866 (6th Cir. 2003); Chao v. Hall Holding The majority goes on to discuss the significance of the Ohio Co., Inc., 285 F.3d 415, 427 (6th Cir. 2002). Accordingly, if courts’ disposition of petitioner’s motion for new trial. Even the case were to be remanded for reconsideration of the though the motion’s untimeliness was clearly one reason for merits, then the district court would be properly directed to also reconsider the exhaustion and procedural default issues in light of these further state court proceedings.

relief on the motion for new trial. Inexplicably, however, neither the report and recommendation nor the district court judgment includes any

IV

reference to these state court proceedings – in connection with either the exhaustion or procedural default analysis. In sum, although I agree that the district court’s denial of the writ should be vacated, I believe that granting a In my opinion, though the majo rity has not relied on it, the outcome conditional writ of habeas corpus on the present record of these subsequent state court proceedings represents arguably persuasive constitutes overreaching. Instead, the matter should be evidence that petitioner had in fact exhausted (and procedurally defaulted) his claim before the district court ruled o n the habeas petition. Hence, if remanded to the district court for completion of the record the matter were to be remanded for reconsideration of the merits, the and reconsideration as indicated above. district court would be properly directed to also reconsider, as appropriate, the exhaustion and procedural default issues in light of these further develop ments.

3 Again, the district court ignored the significance of petitioner’s motio n for new trial.