                              RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                           File Name: 19a0259p.06

                      UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT



 VINCENT D. WHITE, JR.,                                         ┐
                                      Petitioner-Appellant,     │
                                                                │
                                                                 >       No. 18-3277
         v.                                                     │
                                                                │
                                                                │
 WARDEN, ROSS CORRECTIONAL INSTITUTION,                         │
                            Respondent-Appellee.                │
                                                                ┘

                             Appeal from the United States District Court
                            for the Southern District of Ohio at Columbus.
                        No. 2:17-cv-00325—James L. Graham, District Judge.

                                  Decided and Filed: October 8, 2019

                Before: DAUGHTREY, GRIFFIN, and STRANCH, Circuit Judges

                                           _________________

                                                COUNSEL

ON BRIEF: C. Mark Pickrell, Nashville, Tennessee, for Appellant. William H. Lamb, OFFICE
OF THE ATTORNEY GENERAL OF OHIO, Cincinnati, Ohio, for Appellee. Vincent D.
White, Jr., Youngstown, Ohio, pro se.
                                           _________________

                                                 OPINION
                                           _________________

        MARTHA CRAIG DAUGHTREY, CIRCUIT JUDGE. Petitioner Vincent White seeks a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 He argues that he was deprived of his
Sixth Amendment right to effective counsel when, unbeknownst to him, his trial attorney, Javier

       1Following this panel’s request for supplemental briefing, petitioner sought oral argument. We deem oral
argument unnecessary in this case and deny petitioner’s request.
 No. 18-3277                White v. Warden, Ross Correctional Inst.                       Page 2


Armengau, represented him while also under indictment for several serious offenses. White
contends that this situation created potential and actual conflicts of interest that denied him the
effective assistance of counsel. He further asserts that he was prejudiced by the prosecutor and
trial court’s failure to alert him about Armengau’s indictment. The record regarding Armengau’s
alleged conflicts is sparse because White has never received an evidentiary hearing during which
he could develop facts in support of his allegations of ineffective assistance. The warden argues
that, because White filed his motion for post-conviction relief in state court two years beyond the
deadline, White has procedurally defaulted his claim and, accordingly, may not supplement the
record in federal court. We find that due to procedural hurdles in Ohio state court and because
White did not have the aid of an attorney in his post-conviction proceedings, he had no
meaningful opportunity to raise his ineffective-assistance claim. In light of the Supreme Court’s
decision in Trevino v. Thaler, 569 U.S. 413 (2013), which expanded the Court’s earlier ruling in
Martinez v. Ryan, 566 U.S. 1 (2012), we find that White has cause to overcome his default. We
therefore vacate the district court’s denial of a writ and remand the case for further proceedings
consistent with this opinion.

                         FACTUAL AND PROCEDURAL BACKGROUND

        Following a jury trial in Ohio state court, White was convicted of one count of
aggravated burglary, three counts of aggravated robbery, four counts of aggravated murder, two
counts of attempted murder, two counts of felonious assault, and one count of having weapons
while under disability. He was sentenced to an aggregate term of life imprisonment without the
possibility of parole.

        As White was preparing for trial, his attorney, Javier Armengau, was indicted—by the
same prosecutor’s office as had charged White—for 18 counts of serious felony offenses related
to, among other things, sexual misconduct, rape, and kidnapping involving his clients, relatives
of his clients, and employees of his law office. See State v. Armengau, 93 N.E.3d 284, 292
(Ohio Ct. App. 2017). White alleges that his attorney, the prosecution, and the court all failed to
inform him about Armengau’s indictment or any issues it might have raised regarding his
representation. As a result, Armengau continued to represent White throughout his trial and
sentencing. Armengau was eventually tried and convicted on nine charges. Id. at 291.
 No. 18-3277                     White v. Warden, Ross Correctional Inst.                                       Page 3


         As White tells it, he did not learn about Armengau’s indictment until he began
assembling his case for direct appeal. With this newfound knowledge, and with the assistance of
different counsel, White appealed his conviction and sentence to the Ohio Court of Appeals. He
raised multiple claims, including the only relevant issue here:                              whether he suffered
constitutionally ineffective assistance of counsel due to Armengau’s actual and potential
conflicts of interest resulting from the lawyer’s indictment.2 The court denied White’s appeal
and, in doing so, declined to consider his ineffective-assistance claim, explaining that the record
lacked sufficient evidence to allow the court to fully adjudicate the merits. State v. White, No.
14AP-160, 2015 WL 9393518, at *3 (Ohio Ct. App. Dec. 22, 2015). The court further explained
that, because it required factual development unavailable on direct appeal, a direct appeal was
“not the vehicle” for White’s claim, suggesting, but not explicitly stating, that he should raise the
issue in a motion for post-conviction relief. Id. However, the Ohio Court of Appeals did not
issue its ruling until December 22, 2015—almost four months after the deadline for White to file
a post-conviction motion in state court. White sought review of his direct appeal in the Ohio
Supreme Court, but the court declined to accept jurisdiction. State v. White, 49 N.E.3d 321
(Table) (Ohio 2016).

         Proceeding pro se, White then timely filed a federal petition seeking a writ of habeas
corpus. After initiating his federal habeas petition, but before receiving a decision, White filed a
motion seeking post-conviction relief in state court, also pro se, but his filing came almost two
years after the deadline to seek such relief. The trial court, unsurprisingly, dismissed White’s
motion as untimely. State v. White, No. 12CR-4418, slip op. (Franklin Cty. Ct. of Common
Pleas, Nov. 30, 2017). His motion for leave to appeal that order was likewise dismissed as
untimely.3 State v. White, No. 18AP-158, slip op. (Franklin Cty. Ct. of Common Pleas, Apr. 4,
2018).


         2White’s    direct appeal and his state and federal habeas petitions raised multiple claims of ineffective
assistance of counsel separate and distinct from his conflict-of-interest claim. For ease, and because the conflict-of-
interest claim is the only ineffective-assistance claim in front of this panel, for the remainder of this opinion we refer
to it simply as “the ineffective-assistance claim.”
         3In  the district court, White moved for a stay so that he could continue pursuing his post-conviction appeals
in state court. The district court denied that request, finding that such appeals would be fruitless and that the fact of
White’s assured denial sufficed to establish that he had exhausted his state court remedies.
 No. 18-3277                   White v. Warden, Ross Correctional Inst.                             Page 4


       In the district court, the warden argued that White procedurally defaulted his ineffective-
assistance claim because his appeal to the Ohio Supreme Court advanced a separate legal theory.
The district court disagreed and proceeded to the merits. Applying the deferential standard laid
out in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.
§ 2254(d)(1)–(2), the court rejected White’s ineffective-assistance claim but granted a certificate
of appealability.4

                                         STANDARD OF REVIEW

       When considering a petition for a writ of habeas corpus, we review a district court’s legal
conclusions de novo and its factual findings for clear error. Wilson v. Sheldon, 874 F.3d 470,
474 (6th Cir. 2017). Petitions filed after 1996 are generally governed by AEDPA’s exacting
standard. Id. However, AEDPA applies “only to claims that were adjudicated on the merits in
State court proceedings.” Bies v. Sheldon, 775 F.3d 386, 395 (6th Cir. 2014) (internal quotation
marks and citation omitted). Thus, contrary to the district court’s decision, AEDPA does not
control White’s ineffective-assistance claim because no state court ever considered the merits.

       The only time a state court addressed this claim was on direct appeal. There, the Ohio
Court of Appeals overruled White’s assignment of error because it “lack[ed] the necessary facts
to fully consider” the claim. White, 2015 WL 9393518, at *3. Although the Supreme Court has
explained that “it may be presumed that [a] state court adjudicated [a] claim on the merits,” this
presumption is limited to situations in which there is an “absence of any indication or state-law
procedural principles to the contrary.”              Harrington v. Richter, 562 U.S. 86, 99 (2011).
A dismissal of a claim explicitly acknowledging a court’s procedural inability to sufficiently
consider it constitutes an “indication” that the court did not adjudicate the claim on the merits.
And, if there were any doubt about that, a review of Ohio law puts the uncertainty to rest. In
State v. Cooperrider, 448 N.E.2d 452, 454 (Ohio 1983) (per curiam), the Ohio Supreme Court
considered an ineffective-assistance-of-counsel claim raised on direct review. There, the lower
court had overruled the claim because it could not “determine on the record before [it] whether”
counsel’s assistance was ineffective. State v. Cooperrider, No. 81AP-939, 1982 WL 4121, at *2

       4A panel   of this court denied White’s motion to expand the certificate of appealability.
 No. 18-3277               White v. Warden, Ross Correctional Inst.                        Page 5


(Ohio Ct. App. Apr. 22, 1982). Based on this language, the Ohio Supreme Court found it “clear
that the court of appeals . . . did not adjudicate the issue,” and that res judicata did not prevent
the defendant from seeking an evidentiary hearing. Cooperrider, 448 N.E.2d at 454.

       We likewise find it clear that the Ohio Court of Appeals did not adjudicate the merits of
White’s ineffective-assistance claim. Therefore, AEDPA does not apply here. The district court
should have considered White’s claim de novo, and we now apply that standard. See Bies,
775 F.3d at 396.

                                          DISCUSSION

       Federal courts may not consider a petitioner’s claims in federal habeas proceedings
unless he has exhausted his state remedies and “compl[ied] with state procedural rules in
presenting his claim to the appropriate state court.” Williams v. Anderson, 460 F.3d 789, 806
(6th Cir. 2006). The district court determined, and we agree, that, despite the untimeliness of his
post-conviction motion, White has satisfied the exhaustion requirement.          See Clinkscale v.
Carter, 375 F.3d 430, 438 (6th Cir. 2004) (holding that petitioner properly exhausted his
ineffective-assistance claim by presenting it on direct appeal even though the court did not
adjudicate the claim on the merits). A question remains, however, as to whether his untimeliness
precludes his federal claim because he did not “meet the State’s procedural requirements for
presenting his federal claims.” Coleman v. Thompson, 501 U.S. 722, 732 (1991).

       We engage in a four-part inquiry when determining whether a claim is procedurally
defaulted:

       First, the court must determine that there is a state procedural rule that is
       applicable to the petitioner’s claim and that the petitioner failed to comply with
       the rule. . . . Second, the court must decide whether the state courts actually
       enforced the state procedural sanction. . . . Third, the court must decide whether
       the state procedural forfeiture is an adequate and independent state ground on
       which the state can rely to foreclose review of a federal constitutional
       claim. . . . [Fourth, the court must decide whether] there was cause for [the
       petitioner] to not follow the procedural rule and [whether] he was actually
       prejudiced by the alleged constitutional error.
 No. 18-3277                White v. Warden, Ross Correctional Inst.                         Page 6


Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986) (internal quotation marks and citations
omitted). “To inform this inquiry, we look to the last explained state court judgment.” Stojetz v.
Ishee, 892 F.3d 175, 191 (6th Cir. 2018) (internal quotation marks and citations omitted).

       The trial court’s dismissal of White’s motion for post-conviction relief easily satisfies the
first three prongs of the Maupin test. Ohio law contains a statutory deadline for collateral relief,
which requires petitioners to file a motion for post-conviction relief within one year of the filing
of transcripts in the petitioner’s direct appeal. Ohio Rev. Code § 2953.21(A)(2). The parties do
not contest that White failed to meet this deadline or that his untimeliness was the basis of the
trial court’s rejection of his claim and the denial of his motion for leave to appeal. See State v.
White, No. 12CR-4418, slip op. (Franklin Cty. Ct. of Common Pleas, Nov. 30, 2017). And, a
denial of post-conviction relief based on the petitioner’s untimeliness is an independent and
adequate state ground to establish default. See, e.g., Walker v. Martin, 562 U.S. 307, 317 (2011);
Hartman v. Bagley, 492 F.3d 347, 357–58 (6th Cir. 2007).

       In applying Maupin’s fourth prong, we are left to consider whether White had cause for
his non-compliance. It is well established that, generally, a claim of ineffective assistance of
appellate counsel is unavailable as a means of showing cause for petitioners whose default
occurs during post-conviction proceedings, as White’s did here. Coleman, 501 U.S. at 752; West
v. Carpenter, 790 F.3d 693, 697 (2015). Because the Constitution does not guarantee a right to
an attorney in collateral proceedings, in most cases, defendants cannot rely on their pro se status
to overcome a procedural default at the post-conviction stage. West, 790 F.3d at 697.

       However, “[a] prisoner’s inability to present a claim of trial error is of particular concern
when the claim is one of ineffective assistance of counsel.” Martinez, 566 U.S. at 12. Thus, in
Martinez v. Ryan, the Supreme Court announced a “narrow exception” to the general rule,
available to petitioners who can meet four requirements. The petitioner must show that: (1) he
has a “substantial” claim of ineffective assistance of trial counsel; (2) he had “no counsel or
counsel . . . was ineffective” in his collateral-review proceeding; (3) the collateral-review
proceeding was the “initial” review of the claim; and (4) state law requires ineffective-
assistance-of-trial-counsel claims to be raised in the first instance in a collateral-review
proceeding. Id. at 9, 17.
 No. 18-3277               White v. Warden, Ross Correctional Inst.                         Page 7


       The following year, considering Texas’s appellate process, the Court extended the
Martinez exception by modifying the fourth requirement. See Trevino, 569 U.S. at 429. Trevino
v. Thaler applied the Martinez framework to any state where “by reason of its design and
operation, [state procedure] makes it highly unlikely in a typical case that a defendant will have a
meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct
appeal.” Id.

       As an initial matter, White certainly meets the first three Martinez requirements. First, he
raises a “substantial claim of ineffective assistance.” Id. at 416 (quoting Martinez, 566 U.S. at
17). White’s claim is not without “any merit” or “wholly without factual support.” Martinez,
566 U.S. at 16. Although the record is limited, it does establish that Armengau was under
indictment for significant, even shocking charges while serving as White’s counsel. This court
has recognized that “a conflict of interest may arise where defense counsel is subject to a
criminal investigation.” Moss v. United States, 323 F.3d 445, 472 (6th Cir. 2003). Furthermore,
at least one of our sister circuits has found ineffective assistance in a comparable circumstance.
See United States v. DeFalco, 644 F.2d 132, 136–37 (3d Cir. 1979). Other circuits have likewise
acknowledged the possibility that an attorney under investigation or indictment may face
disqualifying conflicts of interest and, as a result, perform ineffectively. See Reyes-Vejerano v.
United States, 276 F.3d 94, 99 (1st Cir. 2002) (deciding that counsel was not ineffective but
recognizing that “[t]he argument is not frivolous that a defense lawyer within the sights of a
targeted criminal prosecution may find his personal interests at odds with his duty to a client.”);
Armienti v. United States, 234 F.3d 820, 824–25 (2d Cir. 2000) (finding an ineffective-assistance
claim “plausible” when defense lawyer was being criminally investigated by same prosecutors
office as had charged defendant); Thompkins v. Cohen, 965 F.2d 330, 332 (7th Cir. 1992)
(“A situation of this sort (the criminal defendant’s lawyer himself under criminal investigation)
. . . can create a conflict of interest.”). Second, the parties do not dispute that White was without
counsel during his state collateral proceedings. And, third, the collateral-review proceeding
would have been the “initial” review of his ineffective-assistance claim because, as we have
already explained, the Ohio Court of Appeals deemed direct appeal an inappropriate forum for
White’s ineffective-assistance claim. State v. White, No. 12CR-4418, slip op. (Franklin Cty. Ct.
of Common Pleas, Nov. 30, 2017).
 No. 18-3277              White v. Warden, Ross Correctional Inst.                        Page 8


       That leaves the fourth requirement of the Martinez-Trevino test. Although “[w]e have
held that Martinez does not apply in Ohio because Ohio permits ineffective-assistance-of-trial-
counsel claims on direct appeal,” a question remains regarding the applicability of Trevino to
Ohio prisoners. Williams v. Mitchell, 792 F.3d 606, 615 (6th Cir. 2015). White can only
establish cause to overcome his procedural default if we determine that Trevino applies in his
circumstances—that is, if we find that it was “highly unlikely” that a “meaningful opportunity”
existed for the Ohio Court of Appeals to review his ineffective-assistance claim on direct review.
See Trevino, 569 U.S. at 429.

       “Ohio law appears to contemplate two kinds of ineffective assistance of counsel claims,
those based only on evidence in the trial record and those based in part on evidence outside the
record.” McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d 741, 751 (6th Cir. 2013). The
first type of ineffective-assistance claim is not relevant here, and we make no consideration or
decision as to Trevino’s application to such claims. Instead, we focus on the second variety of
ineffective-assistance claims—those that rely on facts outside of the record.

       On direct appeal, Ohio law limits the reviewing court “to the record of the proceedings at
trial.” Id. (quoting Morgan v. Eads, 818 N.E.2d 1157, 1159 (Ohio 2004)). In Trevino, the
Supreme Court recognized that “the need to expand the trial court record” is critical to ensuring
meaningful review. 569 U.S. at 428. Ohio courts, too, have recognized this necessity and have
refused to adjudicate ineffective-assistance claims on direct appeal because of the need for
additional evidence. See, e.g., State v. Smith, 477 N.E.2d 1128, 1131 n.1 (Ohio 1985) (noting
that res judicata may not bar post-conviction relief where a court rejected defendant’s direct
appeal based on the trial record alone); Cooperrider 448 N.E.2d at 454 (holding that when “it is
impossible to determine whether the attorney was ineffective in his representation of appellant
where the allegations of ineffectiveness are based on facts not appearing in the record,”
defendants should avail themselves of post-conviction evidentiary hearing procedures). In these
instances, Ohio effectively requires defendants to raise ineffective-assistance claims in post-
conviction petitions. Indeed, the Ohio Court of Appeals did precisely this in White’s case.
White, 2015 WL 9393518, at *3. Practically speaking, then, Ohio law makes it “virtually
 No. 18-3277               White v. Warden, Ross Correctional Inst.                        Page 9


impossible” for defendants to meaningfully raise an ineffective-assistance-of-trial-counsel claim
on direct appeal if the claim relies on evidence outside the record. Trevino, 569 U.S. at 417.

       “Ohio . . . appears to expect appellate counsel to recognize the [two] types of [ineffective-
assistance] claims and follow the proper procedure.” McGuire, 738 F.3d at 751. According to
White, his appellate counsel assured him that the Ohio Court of Appeals would consider his
ineffective-assistance claim on direct appeal, perhaps thinking that the claim was clear on its
face, without further evidence. The record does not contradict White, nor do we have any other
reason to doubt his assertion at this stage. Given this advice, it makes sense that White did not
know that he needed to file a motion for post-conviction relief until after he received the decision
in his direct appeal, but by then his filing was already untimely.

       The severity of Ohio’s filing deadline for collateral relief compounded White’s
procedural troubles. As already noted, under Ohio law, a post-conviction petition must be filed
within one year of the filing of transcripts in a defendant’s direct appeal. Ohio Rev. Code
§ 2953.21(A)(2). A review of White’s state court docket shows that his transcripts were filed on
August 6, 2014. Ohio law, then, required that he file his post-conviction petition by August 5,
2015. But the Court of Appeals did not issue its decision alerting White to his need for a post-
conviction petition, or clarifying which claims might be available to him in that forum, until
more than four months after the deadline. White, 2015 WL 9393518, at *3. At that stage, White
did not have the benefit of counsel, further contributing to his default. See Martinez, 566 U.S. at
12 (“The prisoner, unlearned in the law, may not comply with the State’s procedural rules or may
misapprehend the substantive details of federal constitutional law. . . . [And w]hile confined to
prison, the prisoner is in no position to develop the evidentiary basis for a claim of ineffective
assistance.”).

       In Martinez, the Supreme Court explained that providing an avenue to overcome
procedural default when a petitioner proceeds pro se in an initial-review collateral proceeding
“acknowledges, as an equitable matter, that the initial-review collateral proceeding, if undertaken
without counsel . . . may not have been sufficient to ensure that proper consideration was given
to a substantial claim.” Id. at 14. Trevino similarly recognized that procedural designs that “do[]
not offer most defendants a meaningful opportunity to present a claim of ineffective assistance of
 No. 18-3277               White v. Warden, Ross Correctional Inst.                       Page 10


trial counsel on direct appeal . . . will deprive the defendant of any opportunity at all for review
of [that] claim.”   569 U.S. at 428.      The confluence of Ohio’s general rule requiring the
presentation of ineffective-assistance claims on direct review unless the record lacks sufficient
evidence, the incorrect advice from White’s appellate counsel that his record did contain
sufficient evidence, and the tight procedural timeline imposed by Ohio’s post-conviction-relief
statute left White without a “meaningful opportunity” to obtain review of his substantial
ineffective-assistance claim. See id.

       Ohio’s procedural framework effectively “channel[ed] initial review of [White’s]
constitutional claim to collateral proceedings.” Id. at 423. Accordingly, under the Martinez-
Trevino framework, we find that White has cause to overcome his procedural default because:
he raised a substantial ineffective-assistance claim; he was without counsel during his post-
conviction proceedings; the post-conviction proceeding was the initial opportunity for a merits
assessment of the claim; and the design and operation of Ohio procedural law rendered it “highly
unlikely” his claim could be reviewed on direct appeal. Because we find that White has cause,
he satisfies the fourth prong in Maupin and is not barred from raising his claim of ineffective
assistance based on Armengau’s conflict of interest. See Maupin, 785 F.2d at 138; see also
Detrich v. Ryan, 740 F.3d 1237, 1246 (9th Cir. 2013) (en banc) (concluding that after finding
cause under Martinez, the trial court can continue to the merits of a petitioner’s ineffective-
assistance-of-trial-counsel claims); see also Workman v. Superintendent Albion SCI, 915 F.3d
928, 940 (3d Cir. 2019) (same).

       Although, having determined that White has overcome his procedural default, we could
proceed to the merits of his ineffective-assistance claim, we decline to do so for two reasons.
First, as explained above, in its initial review of White’s claim, the district court applied an
incorrect standard of review. We therefore think it best that the district court have the first
chance to consider the claim de novo.

       Second, White has not yet been able to develop a factual record in support of his
ineffective-assistance claim. The “absence of factual development . . . hamstrings this court’s
ability to determine whether” his trial counsel was constitutionally ineffective. Woolbright v.
Crews, 791 F.3d 628, 637 (6th Cir. 2015). In Woolbright, we faced a similar situation and found
 No. 18-3277               White v. Warden, Ross Correctional Inst.                       Page 11


it appropriate to remand the matter to the district court for “full reconsideration” of the claims,
including a determination of whether to conduct an evidentiary hearing. Id. This measured
approach seems to us the best way forward here as well. See Detrich, 740 F.3d at 1247 (noting
that petitioner demonstrating cause and availing himself of the Martinez exception is entitled to
evidentiary hearing notwithstanding 28 U.S.C. § 2254(e)(2)).

                                         CONCLUSION

       For the reasons explained above, we conclude that White is not procedurally barred from
raising his ineffective-assistance claim and that the district court erred by applying the incorrect
standard of review. We deem it most appropriate for the district court to consider, in the first
instance, White’s claim de novo, including whether he is entitled to an evidentiary hearing in
order to supplement the record.       We therefore VACATE the district court’s ruling and
REMAND this case for further proceedings consistent with this opinion.
