                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0196n.06

                                        Case No. 15-3300

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                               Apr 07, 2016
DAVID B. CLINKSCALE,                                )                     DEBORAH S. HUNT, Clerk
                                                    )
         Petitioner-Appellant,                      )
                                                    )      ON APPEAL FROM THE UNITED
v.                                                  )      STATES DISTRICT COURT FOR
                                                    )      THE SOUTHERN DISTRICT OF
WARDEN, LEBANON CORRECTIONAL                        )      OHIO
INSTITUTION,                                        )
                                                    )
         Respondent-Appellee.                       )
                                                    )

         BEFORE: BOGGS, SILER, and BATCHELDER, Circuit Judges.

         BOGGS, Circuit Judge. David Clinkscale received three separate jury trials involving the

shootings of Kenneth Coleman and Todne Williams. Each jury found Clinkscale guilty of

aggravated murder, attempted aggravated murder, kidnapping, aggravated robbery, and

aggravated burglary. The first judgment was vacated by the Sixth Circuit due to ineffective

assistance of counsel, Clinkscale v. Carter, 375 F.3d 430, 446 (6th Cir. 2004), and the second

judgment was vacated by the Supreme Court of Ohio because the trial court improperly replaced

a juror who became ill during deliberations, State v. Clinkscale, 911 N.E.2d 862, 863 (Ohio

2009).

         After Clinkscale was convicted of the same crimes for the third time, he exhausted his

state-court remedies and petitioned the United States District Court for the Southern District of
Case No. 15-3300, Clinkscale v. Warden, Lebanon Correctional Institution


Ohio for a writ of habeas corpus, seeking to have his third judgment vacated. The district court

denied his petition and issued a certificate of appealability on the following question: “Is the

Petitioner entitled to habeas corpus relief under Ake v. Oklahoma, 470 U.S. 68 (1985), in view of

the trial court’s denial of his request for funds to hire an investigator?” On appeal, Clinkscale

argues that the trial court’s denial of his request for funds violated Ake. He claims that without

the funds, he could not afford to pay an investigator to locate a key witness, Brian Fortner;

therefore, the trial court’s denial of funds deprived him of due process.

       Under the Antiterrorism and Effective Death Penalty Act of 1996, “[a]n 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 one of two conditions is satisfied. 28 U.S.C. § 2254(d). The adjudication

must either have “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,” § 2254(d)(1), or “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.”

§ 2254(d)(2). Because Clinkscale argues that the trial court violated Ake, we evaluate his claim

under § 2254(d)(1).

       In Ake, the Supreme Court held that an indigent defendant must be given a psychiatric

expert when his sanity is a significant issue in a capital case. 470 U.S. at 86–87. This circuit has

held that Ake requires the provision of an independent pathologist to determine a victim’s cause

of death, Terry v. Ress, 985 F.2d 283, 284 (6th Cir. 1993), and the Eighth Circuit has held that

Ake requires the provision of a hypnosis expert to explain the problems with hypnotically

induced recollections, Little v. Armontrout, 835 F.2d 1240, 1243 (8th Cir. 1987). In each of



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Case No. 15-3300, Clinkscale v. Warden, Lebanon Correctional Institution


these cases, the defendant sought access to a scientific expert. Here, instead, Clinkscale sought

funds for a general investigator. While the Tenth Circuit has considered claims involving the

denial of funds for an investigator, none of those cases held that the denial violated Ake. See

Rojem v. Gibson, 245 F.3d 1130, 1139 (10th Cir. 2001); Castro v. Ward, 138 F.3d 810, 826 (10th

Cir. 1998); Matthews v. Price, 83 F.3d 328, 335 (10th Cir. 1996).

       Ake did not expressly establish a right to funds for a general investigator, and the

Supreme Court said as much in Caldwell v. Mississippi, 472 U.S. 320 (1985). In that case,

Caldwell argued that the trial court was required to appoint an investigator to assist him with his

defense. Id. at 323 n.1. The Supreme Court declined to address the issue because the argument

was insufficiently developed and stated that “[w]e therefore have no need to determine as a

matter of federal constitutional law what if any showing would have entitled a defendant to

assistance of the type sought here.” Ibid. Caldwell confirmed that Ake did not specifically

address the issue of whether indigent defendants are entitled to an investigator.

       Ake did state more generally that defendants are entitled to the “basic tools of an adequate

defense.” 470 U.S. at 77 (quoting Britt v. North Carolina, 404 U.S. 226, 227 (1971)). In this

case, however, the trial court’s denial of funds did not prevent Clinkscale from putting on an

adequate defense. Clinkscale received public funds for an investigator in his first two trials.

Clinkscale, 375 F.3d at 434 (discussing first trial); State v. Clinkscale, No. 10AP–1123, 2011

WL 6202436, at *1 (Ohio Ct. App. Dec. 13, 2011) (discussing second trial).               His first

investigator interviewed Brian Fortner and noted that “Fortner confirmed that Clinkscale spent

the evening with him.” Clinkscale, 375 F.3d at 434. Clinkscale therefore knew that Fortner

could have served as an alibi witness long before he began to prepare for his third trial, and his

defense attorney should have been able to locate Fortner without a publicly funded investigator.



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Case No. 15-3300, Clinkscale v. Warden, Lebanon Correctional Institution


As such, the trial court’s denial of funding did not deny Clinkscale the basic tools of an adequate

defense in violation of Ake.

       The district court’s denial of Clinkscale’s petition is AFFIRMED.




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