           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.

                                  1
No. 02-4219                               Clinkscale v. Carter           3   4     Clinkscale v. Carter                                   No. 02-4219

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.
No. 02-4219                               Clinkscale v. Carter          5    6       Clinkscale v. Carter                                No. 02-4219

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.
No. 02-4219                         Clinkscale v. Carter       7   8     Clinkscale v. Carter                         No. 02-4219

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-
No. 02-4219                         Clinkscale v. Carter        9   10    Clinkscale v. Carter                          No. 02-4219

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
No. 02-4219                         Clinkscale v. Carter     11    12       Clinkscale v. Carter                               No. 02-4219

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
No. 02-4219                             Clinkscale v. Carter           13   14    Clinkscale v. Carter                          No. 02-4219

  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 non-
assistance 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
No. 02-4219                           Clinkscale v. Carter       15    16    Clinkscale v. Carter                         No. 02-4219

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.
No. 02-4219                         Clinkscale v. Carter     17    18   Clinkscale v. Carter                         No. 02-4219

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.
No. 02-4219                              Clinkscale v. Carter        19    20       Clinkscale v. Carter                              No. 02-4219

  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.”
No. 02-4219                         Clinkscale v. Carter     21    22       Clinkscale v. Carter                              No. 02-4219

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.
No. 02-4219                           Clinkscale v. Carter      23    24    Clinkscale v. Carter                              No. 02-4219

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.
No. 02-4219                                 Clinkscale v. Carter          25     26    Clinkscale v. Carter                         No. 02-4219

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.
No. 02-4219                           Clinkscale v. Carter      27    28    Clinkscale v. Carter                         No. 02-4219

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
No. 02-4219                                Clinkscale v. Carter            29   30    Clinkscale v. Carter                         No. 02-4219

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 non-
    trial.                                                                      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
No. 02-4219                          Clinkscale v. Carter      31    32       Clinkscale v. Carter                                No. 02-4219

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 fact-
  were 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
No. 02-4219                                Clinkscale v. Carter          33     34    Clinkscale v. Carter                         No. 02-4219

                                    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.
