David B. Clinkscale v. HAROLD E. CARTER, Warden

*The Honorable D avid W . McKeague, United States District Judge
for the Western District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0213P (6th Cir.)
File Name: 04a0213p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DAVID B. CLINKSCALE,
Petitioner-Appellant,
v.
HAROLD E. CARTER, Warden,
Respondent-Appellee.
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No. 02-4219
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 01-00390—Algenon L. Marbley, District Judge.
Argued: December 3, 2003
Decided and Filed: July 8, 2004
Before: MARTIN and MOORE, Circuit Judges;
McKEAGUE, District Judge.*
_________________
COUNSEL
ARGUED: Carol Wright, Columbus, Ohio, for Appellant.
M. Scott Criss, OFFICE OF THE ATTORNEY GENERAL,
2 Clinkscale v. Carter No. 02-4219
1As the facts of this case have been comprehensively recited in
previous court decisions, we will highlight only those facts that are
dispo sitive of the issues presented in this appe al.
Columbus, Ohio, for Appellee. ON BRIEF: Carol Wright,
Columbus, Ohio, for Appellant. M. Scott Criss, OFFICE OF
THE ATTORNEY GENERAL, Columbus, Ohio, for
Appellee.
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
in part.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. David B.
Clinkscale, an Ohio prisoner, appeals the district court’s
denial of his petition for a writ of habeas corpus. For the
reasons stated below, we REVERSE the district court’s
judgment and GRANT a conditional writ of habeas corpus.
I. FACTUAL BACKGROUND1
In this capital case, a jury convicted Clinkscale of several
felony counts, including armed robbery and homicide,
stemming from an incident that occurred at the Columbus,
Ohio, home shared by Kenneth Coleman – Clinkscale’s
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
she ultimately identified as Clinkscale – proceeded to burst
into her bedroom, armed with a pistol, and demanded to know
where she and her husband kept their safe. Williams testified
that Clinkscale then summoned another man – apparently his

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No. 02-4219 Clinkscale v. Carter 3
2Rule 12 .1 provid es:
W henever a defendant in a criminal case proposes to offer
testimony to establish an alibi on his behalf, he shall, not less
than seven days before trial, file and serve upon the prosecuting
partner – to the bedroom, gave him the pistol and directed
him to watch her while Clinkscale looked for the safe.
Williams further testified that after Clinkscale had located the
safe and loaded it into his truck, he retrieved his gun and
ordered Williams to lie on the kitchen floor next to the body
of her husband, Coleman, who had been fatally shot. At that
moment, Williams stated, she ran toward the back door and
Clinkscale shot her three times. Despite her injuries,
Williams was able to call 911. Notably, although Williams
knew Clinkscale as a friend of her husband, she told the 911
operator that she could not identify her assailant.
Clinkscale, testifying in his own defense, maintained that
he could not have committed the crimes as charged because
he had spent the entire night of September 7 and morning of
September 8 in Youngstown, Ohio – approximately one
hundred seventy miles from Columbus. Clinkscale testified
that he and his friend, Bryan Fortner, spent the evening at
Fortner’s home watching a professional football game on
television, and that Clinkscale’s girlfriend, Rhonda Clark,
joined them during the game. After the game, Clinkscale
testified, he and Clark retired to an upstairs bedroom and
remained there until early morning. According to Clinkscale,
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
minutes to the home of his father, Arthur Clinkscale, where
he was living.
As discussed more fully below, the trial court excluded any
other evidence concerning Clinkscale’s alleged alibi because
his trial attorneys, J. Tullis Rogers and Frederick D. Benton,
Jr., failed to file a timely notice of alibi pursuant to Ohio Rule
of Criminal Procedure 12.1.2
4 Clinkscale v. Carter No. 02-4219
attorne y a notice in writing of his intention to claim alibi.
II. PROCEDURAL BACKGROUND
In January 1998, attorneys Rogers and Benton were
appointed to represent Clinkscale at trial. Clinkscale
immediately informed them of his alibi and the individuals
who could corroborate it. The attorneys eventually hired,
with funds approved by the trial court in March, an
investigator named Richard Smith to gather evidence in an
attempt to verify and corroborate Clinkscale’s claimed alibi.
The investigator’s affidavit indicates that based upon his
investigation – which primarily entailed interviewing
defendant Clinkscale, Arthur Clinkscale, Bryan Fortner and
Rhonda Clark – he believed that Clinkscale did, in fact, have
an alibi for which significant corroboration existed. The
investigator’s affidavit further indicates that he discussed his
investigation and conclusions with Clinkscale’s attorneys
several times during the months leading up to the trial.
Nevertheless, the attorneys failed to inform the court or the
prosecution of an intention to present an alibi defense until
September 28, 1998 – only a few days before the jury was
empaneled – when they gave “verbal notice” to the court of
a “possible alibi.”
According to the investigator’s affidavit, on October 1,
1998, Clinkscale’s trial attorneys demanded that he provide
them with a written report immediately. The investigator
quickly completed his report and provided it to them on
Saturday, October 3. The report recounts the investigator’s
interviews with Clinkscale and the three named alibi
witnesses. Specifically, the report states that Clark recalled
that at approximately 10:30 p.m. on September 7, she met
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
the investigator that prior to leaving she “nudged” Clinkscale

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No. 02-4219 Clinkscale v. Carter 5
3Shortly after the announcement of this ruling, the following
colloquy ensued:
THE COURT: Anything else before I call in the jury?
THE DEFENDANT: Y es, sir, Your Ho nor. I, David
Clinkscale, feel that I have not been
properly represented and I wish to have
new counsel if that’s possible.
THE COURT: That’s not possible.
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.
Sit down.
The trial judge then proceeded to describe Ro gers’s and B enton’s
considerable educational and professional qualifications, concluding that
“[i]f I was so inclined I couldn’t appoint two b etter lawyers in Franklin
and told him that she had to go home, and that when she left
the bedroom Clinkscale was still asleep. The report also
provides that Fortner confirmed that Clinkscale spent the
evening with him at Fortner’s home, that Clark came over
during the football game and that Clinkscale and Clark retired
to an upstairs bedroom after the game. Finally, the report
indicates that Arthur Clinkscale stated that he witnessed his
son arrive home at approximately 5:45 or 6:00 a.m. on
September 8, at which time the burglar alarm accidentally
went off and the two had a conversation.
On October 6, after the jury was empaneled, Clinkscale’s
trial attorneys filed a written notice of alibi and identified
Arthur Clinkscale, Bryan Fortner and Rhonda Clark as
potential alibi witnesses. The trial judge refused, however, to
allow any alibi evidence – other than defendant Clinkscale’s
own testimony – because the notice of alibi was not filed
seven days prior to trial, as required by Rule 12.1.3
6 Clinkscale v. Carter No. 02-4219
County than these two.” Clinkscale’s respo nse was: “Let’s roll then. I
have got faith in the m.”
4The Ohio Court of Appeals never indicated the precise form that
Clinksc ale’s motion for post-conviction relief should take, nor the section
of the R evised Code under which it should be filed.
The trial continued and Clinkscale was ultimately
convicted. The jury declined to impose the death penalty, and
Clinkscale was instead sentenced to life imprisonment
without the possibility of parole. Clinkscale appealed his
conviction to the Ohio Court of Appeals, alleging, among
other claims, that his trial attorneys’ failure to file a timely
alibi notice constituted ineffective assistance of counsel in
violation of the Sixth Amendment. The Ohio Court of
Appeals held that it was “unable to make a determination”
from the record whether the delay in filing the notice “was the
result of trial strategy or was due to counsel’s ineffectiveness
as alleged,” and therefore suggested that Clinkscale assert this
claim in a motion for postconviction relief.4 The Ohio Court
of Appeals affirmed Clinkscale’s conviction, and the Ohio
Supreme Court dismissed his petition for review.
On October 24, 2000, Clinkscale filed, pursuant to Ohio
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
notice. The trial court denied the motion, the Ohio Court of
Appeals again affirmed and the Ohio Supreme Court again
denied Clinkscale’s petition for review.
Clinkscale next sought relief in federal court. He filed the
instant petition for a writ of habeas corpus in the United
States District Court for the Southern District of Ohio that
asserted various claims, one of which was that his trial
attorneys’ failure to file a timely alibi notice and/or failure to
investigate his alibi in a timely manner deprived him of the
effective of assistance of counsel, in violation of the Sixth

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No. 02-4219 Clinkscale v. Carter 7
Amendment. Adopting the magistrate’s recommendation, the
district court denied the petition, but granted a certificate of
appealability with respect to each of the issues that Clinkscale
had raised in his petition. Despite the numerous claims
presented in the petition, we need only address Clinkscale’s
claim that his trial attorneys’ failure to file a timely alibi
notice constituted ineffective assistance of counsel in
violation of the Sixth Amendment, as we find this claim to be
meritorious.
III. ANALYSIS
A. Standard of Review
We review de novo the district court’s denial of
Clinkscale’s petition for a writ of habeas corpus. Maples v.
Stegall, 340 F.3d 433, 436 (6th Cir. 2003) (“This court
applies de novo review to the decision of the district court in
a habeas corpus proceeding.”) (citing Harris v. Stovall, 212
F.3d 940, 942 (6th Cir. 2000)). The Antiterrorism and
Effective Death Penalty Act governs our review of
Clinkscale’s petition. 28 U.S.C. § 2254. Section 2254(d) of
the Act provides as follows:
(d) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
8 Clinkscale v. Carter No. 02-4219
28 U.S.C. § 2254(d).
By its terms, this provision only applies to claims that were
“adjudicated on the merits in State court proceedings.” Id.
See also Maples, 340 F.3d at 436; Newton v. Million, 349
F.3d 873, 878 (6th Cir. 2003). In this case, no state court has
adjudicated the merits of Clinkscale’s ineffective assistance
claim. Therefore, the deferential standard of review set forth
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
merits of a claim properly raised in a habeas petition, the
deference due under [the Act] does not apply.”) (citing
Williams v. Coyle, 260 F.3d 684, 706 (6th Cir. 2001));
Newton, 349 F.3d at 878 (same). Cf. Wiggins v. Smith, 123 S.
Ct. 2527, 2542 (2003) (reasoning that because no state court
had determined whether the petitioner had demonstrated the
requisite prejudice under Strickland v. Washington, 466 U.S.
668 (1984), its “review [of that issue was] not circumscribed
by a state court conclusion . . . .”).
Accordingly, we review Clinkscale’s ineffective assistance
claim de novo, Maples, 340 F.3d at 437, and consider “the
totality of the evidence – ‘both that adduced at trial, and the
evidence adduced in the habeas proceeding[s],’” Wiggins,
123 S. Ct. at 2542-43 (quoting Williams v. Taylor, 529 U.S.
362, 397-98 (2000)) (emphasis provided in Wiggins). Before
considering the merits of Clinkscale’s ineffective assistance
claim, however, we first address the preliminary questions of
whether Clinkscale has exhausted his state remedies and
whether the claim has been procedurally defaulted.
B. Exhaustion
In general, we may grant a petition for a writ of habeas
corpus only if “it appears that . . . the applicant has exhausted
the remedies available in the courts of the State . . . .” 28
U.S.C. § 2254(b)(1). Notably, the state never raised an
exhaustion argument in the district court. Similarly, in these
proceedings, the state’s only reference to exhaustion is a one-

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No. 02-4219 Clinkscale v. Carter 9
sentence, passing reference in its brief. Carter Br. at 14.
Nevertheless, the Act provides that the state cannot waive or
be estopped from relying upon the exhaustion requirement
except if the state, through counsel, “expressly waives the
requirement,” see 28 U.S.C. § 2254(b)(3), which has not been
done here. We possess the authority to raise and consider the
issue of exhaustion sua sponte, Harris v. Rees, 794 F.2d
1168, 1170 (6th Cir. 1986), and we invoke that authority to
consider whether Clinkscale has exhausted his state law
remedies.
The Act provides that “[a]n applicant shall not be deemed
to have exhausted the remedies available in the courts of the
State, within the meaning of this section, if he has the right
under the law of the State to raise, by any available procedure,
the question presented.” 28 U.S.C. § 2254(c). The Supreme
Court has explained that “[a]lthough this language could be
read to effectively foreclose habeas review by requiring a
state prisoner to invoke any possible avenue of state court
review, we have never interpreted the exhaustion requirement
in such a restrictive fashion.” O’Sullivan v. Boerckel, 526
U.S. 838, 844 (1999) (citation omitted) (emphasis in original).
Rather, the Court has described the exhaustion requirement as
follows:
Because the exhaustion doctrine is designed to give the
state courts a full and fair opportunity to resolve federal
constitutional claims before those claims are presented to
the federal courts, we conclude that state prisoners must
give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of
the State’s established appellate review process.
O’Sullivan, 526 U.S. at 845.
In O’Sullivan, the Court considered whether the petitioner
had exhausted the remedies that were available to him in the
Illinois courts. The Court reasoned that “Illinois’ established,
normal appellate review procedure is a two-tiered system.
10 Clinkscale v. Carter No. 02-4219
Comity, in these circumstances, dictates that [the petitioner]
use the State’s established appellate review procedures before
he presents his claims to a federal court.” Id. According to
the Court, “a petition for discretionary review in Illinois’
Supreme Court is a normal, simple, and established part of the
State’s appellate review process.” Id. Therefore, the Court
concluded that in order to exhaust his state remedies, the
petitioner was required to file a petition for discretionary
review with the Illinois Supreme Court. Id. In line with the
Court’s reasoning in O’Sullivan, we have held that “[t]o
exhaust his or her remedies, a petitioner for federal habeas
corpus relief is only required to raise his claims before the
state’s highest court.” Manning v. Alexander, 912 F.2d 878,
883 (6th Cir. 1990).
Additionally, a petitioner must have “‘fairly presented’ the
substance of each of his federal constitutional claims to the
state courts . . . .” Hannah v. Conley, 49 F.3d 1193, 1196 (6th
Cir. 1995) (citations omitted). See also O’Sullivan, 526 U.S.
at 844 (section 2254(c) “requires only that state prisoners give
state courts a fair opportunity to act on their claims”)
(emphasis in original); Manning, 912 F.2d at 881 (“The
exhaustion requirement is satisfied when the highest court in
the state in which the petitioner was convicted has been given
a full and fair opportunity to rule on the petitioner’s claims.”).
As we have explained:
A petitioner can take four actions in its brief which are
significant to the determination as to whether a claim has
been fairly presented: (1) reliance upon federal cases
employing constitutional analysis; (2) reliance upon state
cases employing federal constitutional analysis;
(3) phrasing the claim in terms of constitutional law or in
terms sufficiently particular to allege a denial of a
specific constitutional right; or (4) alleging facts well
within the mainstream of constitutional law.”
Newton, 349 F.3d at 877. See also Levine v. Torvik, 986 F.2d
1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993) (“A

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No. 02-4219 Clinkscale v. Carter 11
petitioner ‘fairly presents’ his claim to the state courts by
citing a provision of the Constitution, federal decisions using
constitutional analysis, or state decisions employing
constitutional analysis in similar fact patterns.”).
In this case, Clinkscale presented his ineffective assistance
claim to the Ohio Court of Appeals on direct appeal of his
conviction. When the Ohio Court of Appeals denied relief on
this claim – purportedly on the ground that the record was
insufficient to permit a determination whether the alleged
error was part of Clinkscale’s attorneys’ “trial strategy” –
Clinkscale filed a petition for review of that decision in the
Ohio Supreme Court. When the Ohio Supreme Court
dismissed the petition, Clinkscale had fulfilled his obligation
of invoking “one complete round of the State’s established
appellate review process.” O’Sullivan, 526 U.S. at 845.
Clinkscale had also “fairly presented” the legal and factual
bases of his ineffective assistance claim to the Ohio courts.
Hannah, 49 F.3d at 1196. Clinkscale’s brief in support of his
direct appeal explicitly presents this claim as the fourth
assignment of error, which reads as follows:
Defendant-Appellant was denied his right to the effective
assistance of counsel guaranteed to him under U.S.
Const. amend. VI and XIV and Ohio Const. art. I, § 10
based upon the following: . . . (c) defense counsel failed
to file a timely notice of alibi resulting in the exclusion
of the third party corroborating alibi testimony . . . .
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
violation. By taking these actions, Clinkscale “fairly
presented” his ineffective assistance claim to the Ohio courts.
See, e.g., Newton, 349 F.3d at 877; Levine, 986 F.2d at 1516.
Although Clinkscale subsequently filed in the state trial court
a post-conviction motion for leave to file a motion for a new
trial, which was based in part upon trial counsel’s alleged
12 Clinkscale v. Carter No. 02-4219
5No tably, when Clinkscale gave the state courts a further oppo rtunity
to review his ineffective assistance claim – via the post-conviction new
trial motion – the Ohio Court of Appe als essentially chastised him for
asserting this claim a second time in state court:
[A]s appellant co nced es, these issues were alrea dy raised by
appellant on direct review. As such, there was nothing to be
resolved by an evidentiary hearing, and the trial court did not err
ineffectiveness, that avenue of relief was unnecessary for
purposes of exhausting his ineffective assistance of counsel
claim.
That the Ohio Court of Appeals declined to reach the merits
of the ineffective assistance claim – and instead suggested
that the claim be raised in a motion for post-conviction relief
– does not alter our conclusion that Clinkscale exhausted his
state remedies. First, it is beyond peradventure that
exhaustion does not require a state court adjudication on the
merits of the claim at issue. Smith v. Digmon, 434 U.S. 332,
333 (1978) (“It is too obvious to merit extended discussion
that whether the exhaustion requirement of 28 U.S.C. §
2254(b) has been satisfied cannot turn upon whether a state
appellate court chooses to ignore in its opinion a federal
constitutional claim squarely raised in petitioner’s brief in the
state court . . . .”); Manning, 912 F.2d at 883 (“The fact that
the state court does not address the merits of the claim[s] does
not preclude a finding of exhaustion.”) (citing Harris, 794
F.2d at 1173).
Second, we are aware of no legal authority holding that a
petitioner who properly and fairly presents a claim on direct
appeal to the state’s intermediate appellate court and highest
court, but who fails to file a later collateral motion as
suggested by the intermediate appellate court, has failed to
exhaust state remedies. To impose such an onerous and
unjustified burden upon a petitioner in the absence of any
explicit authority establishing such a requirement would be
imprudent, unwarranted and manifestly unfair.5

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No. 02-4219 Clinkscale v. Carter 13
in denying ap pellant’s motion without such a hearing. . . .
Appellant conced es that these issues were previously raised on
direct appeal, but purports to raise them again for purposes of
preserving them for federal court review. Given ap pellant’s
concession in this regard and our resolution of appellant’s first
assignment of error, appellant’s second assignment of error is
not well-taken and is overruled.
Third, a habeas petitioner need not exhaust any and all
remedies that are potentially available to him in state court.
See O’Sullivan, 526 U.S. at 844-45 (holding that a petitioner
need only exhaust those remedies that comprise a state’s
“standard,” “established,” “normal” appellate review process)
(citing Wilwording v. Swenson, 404 U.S. 249, 249-50 (1971)
(per curiam) (rejecting the notion that a petitioner must
invoke “any of a number of possible alternatives to state
habeas . . . .”)). Here, as discussed, Clinkscale has invoked
and exhausted all levels of Ohio’s standard, established
appellate review process.
Finally, under the somewhat unique facts of this case, the
stated reason that the Ohio Court of Appeals denied relief was
based upon a misunderstanding of the nature of the ineffective
assistance inquiry. According to the Ohio Court of Appeals,
the reason it could not reach the merits of Clinkscale’s claim
was that it was “unable to reach a determination as to whether
the delay was the result of trial strategy or was due to
counsel’s ineffectiveness as alleged.” This explanation
implies that if the delay was strategic, then it necessarily
could not constitute ineffective assistance of counsel. As
explained more fully below, however, “[t]he relevant question
is not whether counsel’s choices were strategic, but whether
they were reasonable.” Roe v. Flores-Ortega, 528 U.S. 470,
481 (2000) (citing Strickland, 466 U.S. at 688).
Our dissenting colleague’s disagreement with our
exhaustion holding stems in part from his view that the
magistrate ruled that Clinkscale had failed to exhaust his state
remedies, and that this ruling “must be left undisturbed.” We
14 Clinkscale v. Carter No. 02-4219
do not share this view. The magistrate’s report and
recommendation concededly contains a few isolated
statements that could be interpreted as pertaining to
exhaustion – the most favorable of which, from the dissent’s
point of view, are listed in footnote one of the separate
opinion. Those statements, however, are vague, hypothetical
and unclear, and are scattered throughout a five-page,
convoluted discussion of procedural default, not exhaustion,
that improperly confuses the two doctrines. It was procedural
default, not exhaustion, that the state had argued, and it was
procedural default, not exhaustion, that the magistrate’s report
and recommendation analyzes (ultimately finding in
Clinkscale’s favor on that issue). While the dissent attempts
to excise these isolated statements from the report and
recommendation and to recast them as a clear ruling of non-
exhaustion, in our view no such ruling was made. Given our
conclusion that the magistrate never held that Clinkscale had
failed to exhaust his state law remedies, there is no finding of
non-exhaustion that must be left “undisturbed.”
The separate opinion also asserts that our conclusion that
Clinkscale exhausted his state remedies “flies in the face of
the teaching of Castille v. Peoples, 489 U.S. 346, 350-51
(1989).” But Castille is so distinguishable from the present
case that, if relevant at all, it actually lends further support to
our conclusion. In Castille, the Court considered whether a
habeas petitioner had exhausted his state remedies by
presenting his federal constitutional claims in two separate
motions for allocatur to the Pennsylvania Supreme Court,
without previously having sought any relief on those claims
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
important reasons therefor.’” Id. at 347 (quoting Pa. R. App.
P. 1114). The Court held that the petitioner’s motions for
allocatur, without more, were insufficient to constitute “fair
presentation” of his federal claims to the state courts. Id. at
351. According to the Court, “where the claim has been
presented for the first and only time in a procedural context in

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No. 02-4219 Clinkscale v. Carter 15
6As we have explained, Clinkscale then proceeded to seek further
review in the Ohio Supreme C ourt, but to no avail.
which its merits will not be considered unless ‘there are
special and important reasons therefor,’ . . . [r]aising the claim
in such a fashion does not, for the relevant purpose, constitute
‘fair presentation.’” Id. (citations omitted).
Unlike the petitioner in Castille, Clinkscale raised his
ineffective assistance of counsel claim on direct appeal, in
which there were no special limitations on the ability of the
Ohio Court of Appeals to reach the merits of that claim.6 In
more general terms, the sole factor determining the outcome
in Castille is entirely absent in this case. Thus, if Castille has
any relevance here, it corroborates our conclusion that
Clinkscale has fairly presented his claim to the Ohio state
courts.
C. Procedural Default
We now turn to the state’s argument that Clinkscale has
procedurally defaulted this ineffective assistance claim.
Under the procedural default doctrine, “[a] federal court is
generally barred from considering an issue of federal law
arising from the judgment of a state court if the state
judgment ‘rests on a state-law ground that is both
‘independent’ of the merits of the federal claim and an
‘adequate’ basis for the [state] court’s decision.’” Frazier v.
Huffman, 343 F.3d 780, 790 (6th Cir. 2003) (quoting Harris,
489 U.S. at 260). See also Coleman v. Thompson, 501 U.S.
722, 729-30 (1991). We apply a four-part test in determining
whether a habeas claim has been 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. . . .
16 Clinkscale v. Carter No. 02-4219
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. . . . Once the court
determines that a state procedural rule was not complied
with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate . . .
that there was “cause” for him to not follow the
procedural rule and that he was actually prejudiced by
the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1985).
In this case, when the Ohio Court of Appeals declined to
reach the merits of Clinkscale’s ineffective assistance claim
on direct appeal, it did so because of its preference that the
claim be raised in a post-conviction motion, not because of
Clinkscale’s failure to comply with a procedural rule. Under
Ohio law, claims alleging ineffective assistance of trial
counsel are permitted to be raised on direct appeal, see State
v. Perry, 226 N.E.2d 104 (Ohio 1967), and Clinkscale
properly took advantage of that opportunity. The Ohio Court
of Appeals’ decision denying relief does not even mention an
applicable procedural rule, let alone “clearly and expressly
state[] that its judgment rests on a state procedural bar.”
Frazier, 343 F.3d at 791 (quoting Harris, 489 U.S. at 263).
Therefore, not even the first Maupin procedural default factor
is satisfied.
As discussed, Clinkscale’s further attempt to obtain relief
in state court – i.e., his filing of a post-conviction motion for
leave to file a motion for a new trial – was entirely
unnecessary for purposes of preserving federal court review,
and is irrelevant to our analysis of procedural default.
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
Court of Appeals’ denial of relief on direct appeal. Therefore,
even if the Ohio Court of Appeals, in affirming the denial of

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No. 02-4219 Clinkscale v. Carter 17
Clinkscale’s post-conviction new trial motion, refused to
address the merits of his ineffective assistance claim because
of a failure to comply with a state procedural rule, that would
not bar federal court review of Clinkscale’s ineffective
assistance claim. In other words, because on direct appeal
Clinkscale properly exhausted his state remedies and did not
commit a procedural default, he never had to file a subsequent
post-conviction motion in state court; thus, any procedural
default that may have occurred with respect to that later,
unnecessary post-conviction motion simply does not matter
for purposes of this analysis. Our conclusion in this regard
comports with the purpose of the procedural default rule. “In
the habeas context, the application of the independent and
adequate state ground doctrine is grounded in concerns of
comity and federalism.” Coleman, 501 U.S. at 722. Those
concerns are satisfied here because the Ohio courts were
given a full and fair opportunity to adjudicate and grant relief
on Clinkscale’s federal constitutional ineffective assistance
claim on direct appeal, and they never refused, on procedural
grounds, to rule on that claim.
But even if we were to consider the post-conviction state
court proceedings in our procedural default analysis, we
would conclude that no procedural default occurred in those
proceedings. That is because the decision of the Ohio Court
of Appeals affirming the denial of Clinkscale’s post-
conviction new trial motion did not “clearly and expressly
state[] that its judgment rest[ed] on a state procedural
ground.” Harris, 489 U.S. at 263; Frazier, 343 F.3d at 791.
In its memorandum decision affirming the trial court’s denial
of the motion, the court began by characterizing the trial
court’s ruling as follows:
On October 24, 2000, the trial court denied appellant’s
motion without a hearing, finding that appellant failed to
satisfy the requirements under [Rule 33] for filing an
untimely motion for a new trial and that appellant
merely sought to reargue issues previously raised in his
direct appeal.
18 Clinkscale v. Carter No. 02-4219
(Emphasis added.)
The Ohio Court of Appeals then proceeded to analyze
Clinkscale’s two assignments of error, which were:
[1] The trial court erred in failing to grant leave to file
a motion for new trial or at a minimum, hold an
evidentiary hearing on the motion for leave, thereby
denying appellant his Sixth Amendment right to the
effective assistance of counsel, as guaranteed by the
Fifth, Sixth and Fourteenth Amendments to the
United States Constitution.
[2] Appellant was denied the effective assistance of
counsel as guaranteed by the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the U.S.
Constitution when trial counsel failed to timely file
a notice of alibi, failed to object to . . . the
admission of other prejudicial acts, failed to object
to misleading prosecutorial argument and failed to
object to inadmissible hearsay evidence.
With regard to Clinkscale’s first assignment of error, the court
held:
Here, the grounds underlying appellant’s motion for new
trial were known at the time the verdict was rendered.
Moreover, as appellant concedes, these issues were
already raised by appellant on direct appeal. As such,
there was nothing to be resolved by an evidentiary
hearing, and the trial court did not err in denying
appellant’s motion without such a hearing.
(Emphasis added.) As to Clinkscale’s second assignment of
error, the court held:
Appellant concedes that these issues were previously
raised on direct appeal, but purports to raise them again
for purposes of preserving them for federal court review.

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No. 02-4219 Clinkscale v. Carter 19
7The Ohio Suprem e Court dismissed Clinkscale’s petition for review
of this decision.
Given appellant’s concession in this regard and our
resolution of appellant’s first assignment of error,
appellant’s second assignment of error is not well-taken
and is overruled.
(Emphasis added.)7
As the above-quoted language demonstrates, the Ohio
Court of Appeals’ decision does not “clearly and expressly
state[]” that it was based on non-compliance with Rule 33.
Although the decision unquestionably mentions Rule 33 and
its requirements, it also emphasizes and relies upon the fact
that Clinkscale’s ineffective assistance claim had already been
raised on direct appeal. It is unclear on what ground, or
grounds, the court’s judgment rested. Under these
circumstances, we are unable to say that the Ohio Court of
Appeals’ decision “clearly and expressly states that its
judgment rests on a state procedural bar.” Harris, 489 U.S.
at 263; Frazier, 343 F.3d at 791.
For these reasons, Clinkscale has not procedurally defaulted
his ineffective assistance claim. We now turn, therefore, to
the merits of that claim.
D. Ineffective Assistance of Counsel
Our review of Clinkscale’s ineffective assistance claim is
governed by the familiar two-prong test set forth in
Strickland. In order to satisfy the first prong, Clinkscale must
prove that his counsel’s representation was deficient in that it
“fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688. In considering this issue, we
“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
20 Clinkscale v. Carter No. 02-4219
8Although 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
could back it up with credible witnesses and corroboration,” Attorney
Benton’s July 26, 2002, affidavit admits: “I have no explanation for
failing to file the Notice timely. I believe it was error on our part.”
presumption that, under the circumstances, the challenged
conduct might be considered sound trial strategy.” Id. at 689.
The second prong of Strickland requires Clinkscale to
demonstrate that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of [his trial]
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Id. at 694.
We note at the outset that a number of courts have found
ineffective assistance of counsel in violation of the Sixth
Amendment where, as in this case, a defendant’s trial counsel
fails to file a timely alibi notice and/or fails adequately to
investigate potential alibi witnesses. See, e.g., Blackburn v.
Foltz, 828 F.2d 1177 (6th Cir. 1987); Johns v. Perini, 462
F.2d 1308 (6th Cir. 1972) (applying pre-Strickland standard);
Brown v. Meyers, 137 F.3d 1154 (9th Cir. 1998); Bryant v.
Scott, 28 F.3d 1411 (5th Cir. 1994). For the reasons stated
below, the same result is compelled in this case.
With respect to the first prong of Strickland, the state relies
upon the conclusion of the district court (and the magistrate)
that Clinkscale failed to present sufficient evidence to rebut
the presumption that his attorneys’ failure to file a timely alibi
notice was part of a “sound trial strategy.” Strickland, 466
U.S. at 489. What that conclusion fails to recognize,
however, is that even if Clinkscale’s attorneys subjectively
believed that failing to file an alibi notice on time was in
some way strategic – which is doubtful8 – such a “strategy”
cannot, under the circumstances presented in this case, be
considered objectively “sound,” id., or “reasonable,” Roe v.
Flores-Ortega, 528 U.S. 470, 481 (2000) (“The relevant

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No. 02-4219 Clinkscale v. Carter 21
question is not whether counsel’s choices were strategic, but
whether they were reasonable.”).
At least where – as here – alibi is a critical aspect of a
defendant’s defense, there is nothing reasonable about failing
to file an alibi notice within the time prescribed by the
applicable rules when such failure risks wholesale exclusion
of the defense. In this case, there would have been nothing to
lose, yet everything to gain, from filing the alibi notice in
compliance with Rule 12.1. Such a course of action would
have preserved Clinskcale’s right to assert an alibi defense,
but at the same time would not have tied him into asserting
such a defense at trial. See Williams v. Florida, 399 U.S. 78,
84 (1970) (“Nothing in [a rule such as Rule 12.1] requires the
defendant to rely on an alibi or prevents him from abandoning
the defense; these matters are left to his unfettered choice.”).
Therefore, based upon our consideration of counsel’s overall
performance, and in view of all the facts in the record, we find
that Clinkscale has met his burden, under the first prong of
Strickland, of establishing that the performance of his trial
counsel fell below an objective standard of reasonableness.
Having found the first prong of Strickland satisfied, we
now consider the second. The district court held that
Clinkscale “failed to demonstrate that he was prejudiced since
he has failed to offer an affidavit from the alleged alibi
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
identified – and we are aware of none – specifically requiring
that a defendant claiming ineffectiveness of counsel based on
the failure to file a timely alibi notice must produce an
affidavit from the potential alibi witnesses documenting the
substance of their anticipated testimony. Second, and in any
event, the district court simply overlooked the fact that
Clinkscale has, in fact, submitted such an affidavit from one
potential alibi witness: his father, Arthur Clinkscale.
22 Clinkscale v. Carter No. 02-4219
9The state attacks the significance of Arthur Clinkscale’s affidavit on
the grounds that: (1) he is defendant Clinkscale’s father and therefore has
a motive to lie; and (2) the sub stance of his affidavit “only b arely
provide[s] an alibi for Clinksc ale” because “Clinkscale could certainly
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
Br. at 16. These arguments are unavailing. In considering the
significance of this affidavit, our role is limited to determining whether
there is a “reasonable probability” that the outcome o f Clinkscale’s trial
would have b een d ifferent but for his counsel’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.
As noted, Arthur Clinkscale’s affidavit states that he saw
his son “at approximately 5:45 to 6:00 a.m.” on September 8
when defendant Clinkscale returned home, and that “[w]hen
[defendant Clinkscale] entered the home[,] he accidentally set
off the burglar alarm. We had a conversation and then
[defendant Clinkscale] went to his room.” The affidavit
further states: “I arranged for Bryan Fortner and Rhonda
Clark to be at my home to be interviewed by Mr. Smith [the
defense investigator] . . . . Both Mr. Fortner and Ms. Clark
were present and were interviewed by Mr. Smith. They
confirmed that [defendant Clinkscale] was in Youngstown the
evening of September 7, 1997 before he came home in the
early morning hours of September 8, 1997.” Finally, the
affidavit confirms that Arthur Clinkscale had been, and
continues to be, willing to testify to these events at any trial
or hearing.9
In addition to Arthur Clinkscale’s affidavit, the record
contains other evidence – specifically, the investigator’s
affidavit and written investigative report – that provides some
indication of the facts to which Arthur Clinkscale, Bryan
Fortner and Rhonda Clark might have testified if called as
alibi witnesses. As discussed, the investigator’s affidavit
states that based upon his investigation, he believed that
defendant Clinkscale had an alibi that could be corroborated
by these three witnesses and possibly others, and the

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No. 02-4219 Clinkscale v. Carter 23
investigative report details the substance of that
corroboration. For example, the report indicates that:
(1) Arthur Clinkscale told the investigator essentially the
same version of events as set forth in his affidavit; (2) Bryan
Fortner confirmed that Clinkscale and Clark were at Fortner’s
home throughout the evening and night of September 7, and
that Clinkscale and Clark retired to a bedroom after the three
watched a professional football game on television; and
(3) Clark confirmed that she went to Fortner’s home on the
evening of September 7, and that she and Clinkscale spent the
night there together until she departed at “approximately 4:00
a.m./4:30 a.m.”
But for Clinkscale’s attorneys’ failure to file the alibi notice
in a timely manner, Clinkscale would have been permitted to
call these – and other – witnesses to testify on his behalf. The
undisputed evidence indicates that Arthur Clinkscale certainly
would have testified to the events set forth in his affidavit and
the investigative report. Moreover, it is reasonable to assume,
based upon the investigator’s affidavit and report, that Fortner
and Clark also would have given testimony corroborating
Clinkscale’s alibi. As it was, Clinkscale’s only meaningful
defense – for which no evidence other than his own testimony
was deemed admissible – was that he could not have
committed the crimes as charged because he was in
Youngstown at the time with his close friend, Bryan Fortner,
his girlfriend, Rhonda Clark, and his father, Arthur
Clinkscale. The fact that none of these individuals could
provide any corroboration for this alleged alibi certainly must
have significantly affected the jury’s assessment of
Clinkscale’s guilt. Had even one alibi witness been permitted
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)].”
Brown, 137 F.3d at 1157. “[W]ithout any corroborating
24 Clinkscale v. Carter No. 02-4219
10Additiona lly, had someone other than Clinkscale been permitted
to testify that Clinkscale was in Youngstown at the time the crimes were
committed, Clinkscale himse lf “could have exercised 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.
witnesses,” however, Clinkscale’s testimony “left him
without any effective defense.” Id.10
Clinkscale’s claim of prejudice is further supported by the
notable weaknesses in the prosecution’s case. See Strickland,
466 U.S. at 696 (explaining that “a verdict or conclusion only
weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record
support.”). By far the most damaging evidence against
Clinkscale was the trial testimony of Williams, the surviving
victim, during which she identified Clinkscale as the
individual who shot her. Even putting aside our “grave
reservations concerning the reliability of eyewitness
testimony,” Blackburn, 828 F.2d at 1186 (citing Wilson v.
Cowan, 578 F.2d 166, 168 (6th Cir. 1978)), the accuracy of
Williams’s identification is highly suspect. As stated,
Williams told a 911 operator just after the shooting that she
did not know the identity of the shooter, yet she has admitted
to knowing Clinkscale, as a friend of her husband, prior to the
night in question. Additionally, after eventually identifying
Clinkscale as the shooter, Williams identified his alleged
partner in crime as an individual named Darren Hornbuckle.
The police conclusively determined, however, that
Hornbuckle could not have been involved in the crimes.
These and other weaknesses in the prosecution’s case serve to
bolster Clinkscale’s claim of prejudice. See Strickland, 466
U.S. at 696. Moreover, because the central focus of
Clinkscale’s trial was the identity of the perpetrator, the
evidence essentially boiled down to a credibility contest
between Williams and Clinkscale. Under these
circumstances, Clinkscale’s inability to provide any

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No. 02-4219 Clinkscale v. Carter 25
11The dissent takes issue with our decision to address the merits of
Clinksc ale’s ineffective assistance claim, and believes that the more
app ropriate course of action would be to remand this case to the district
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
the fact that neither party has requested remand, we see no purpo se for it.
The existing record is sufficient to permit a decision on the merits of
Clinksc ale’s ineffective assistance claim, and the district court has already
rendered such a decision – which, as we have explained, is erroneous.
Under these circumstances, rem anding this case to the district court would
be an exercise in futility.
supporting testimony for his strongest defense must be
considered especially damaging and prejudicial.
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
trial would have been different but for his trial counsel’s
deficient performance. Id. at 694.11
IV. CONCLUSION
“The Sixth Amendment recognizes the right to the
assistance of counsel because it envisions counsel’s playing
a role that is critical to the ability of the adversarial system to
produce just results.” Id. at 685. Clinkscale’s trial attorneys
played no such role in this case, and their actions have
seriously undermined the fundamental fairness of
Clinkscale’s trial and the justness of his conviction. For all
the foregoing reasons, we REVERSE the district court’s
judgment and GRANT a conditional writ of habeas corpus,
giving the State of Ohio ninety days in which to retry
Clinkscale or release him from state custody.
26 Clinkscale v. Carter No. 02-4219
_____________________________________________
CONCURRING IN PART, DISSENTING IN PART
_____________________________________________
DAVID W. McKEAGUE, District Judge, concurring in
part and dissenting in part. The majority opinion addresses
three issues: exhaustion, procedural default, and the merits of
petitioner’s ineffective assistance of counsel claim.
Addressing the last of these issues first, I concur in the
conclusion that the district court’s judgment denying the
petition on the merits should be vacated. For the reasons that
follow, I am constrained to conclude, however, on the present
record, that the Sixth Circuit is no less prohibited than the
district court from granting the writ – even conditionally. I
therefore concur in part and dissent in part.
I
The district court reached the merits of petitioner’s
ineffective assistance claim notwithstanding petitioner’s
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
performance was deficient, such deficiency so prejudiced
petitioner as to deny him a fair trial. Id. at 25-30, J.A. 50-55.
For the reasons set forth in Part III.D of the majority opinion,
I, too, would hold the district court erred in its conclusion,
based on the record before it, that the ineffective assistance
claim must be denied.
The record presented suggests petitioner has a colorable
claim, but the record is not sufficiently clear and complete to

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No. 02-4219 Clinkscale v. Carter 27
enable a definitive ruling either way. The insufficiency of the
record is evident in the majority’s analysis. For instance, with
respect to the first prong of the Strickland test, the majority
recognizes the conflict between the affidavits of petitioner’s
two trial attorneys, one claiming that the late filing of the alibi
defense notice was the function of strategic choice, and the
other surmising that it was a matter of error by counsel. The
record offers no explanation of the “strategic choice” and no
means of reconciling the two affidavits. The district court
resolved the difficulties by holding simply that petitioner has
failed to carry his burden, while ignoring his request for an
evidentiary hearing. The majority, on the other hand, relies
on its deduction that the unexplained strategic choice is “self-
serving” and “doubtful.” Because the majority is unable to
conceive of a sound reason for the late filing of the notice, it
finds the “strong presumption” of Strickland adequately
rebutted.
Similar ambiguities undermine evaluation of the second
Strickland prong as well. In holding that petitioner had not
shown prejudice, the district court noted that petitioner had
offered no proof of the nature of his putative alibi witnesses’
testimony or even that they would in fact have been available
and willing to so testify. The majority correctly points out
that the district court erroneously ignored the affidavit of one
of the alibi witnesses, petitioner’s father. The majority
concedes that the father’s credibility is not unassailable, but
finds corroboration of petitioner’s alibi in an investigator’s
affidavit and report. Using these sources, the majority
launches into speculation regarding what “is reasonable to
assume” and what the alibi witnesses “might have testified”
to if they had been called.
My purpose is not to attack the soundness of the majority’s
speculation, but to highlight the inadequacy of the present
record. Faced with this inadequacy, the district court, in my
opinion, had two legitimate alternatives. First, it could have
granted petitioner’s request for an evidentiary hearing, to
allow completion of the record before evaluating the merits.
28 Clinkscale v. Carter No. 02-4219
Second, it could have dismissed the claim without prejudice,
because unexhausted, and allowed petitioner to pursue his
remedies, potentially including an evidentiary hearing, in the
state courts. For reasons evident below, the first alternative
is superior. Indeed, this is the course recently taken by the
Sixth Circuit in Bigelow v. Williams, 367 F.3d 562 (6th Cir.
2004). Faced with a habeas claim based on ineffective
assistance where counsel’s supposed strategic decision was,
on the record presented, “unexplained, if not inexplicable,” id.
at 573, the Bigelow court remanded the matter to the district
court for further proceedings, possibly including an
evidentiary hearing, to determine both prongs of the
Strickland standard in the first instance. In “rushing to
judgment” on the merits of petitioner’s claim, rather than
remanding to the district court for clarification of the record,
the majority simply declares the record to be sufficient and
then supplies the missing details with its own supposition and
speculation. I respectfully submit that completion of the
factual record is a task better committed to the district court.
Further, in refusing to recognize that deficiencies in the
record are due in part to petitioner’s failure to exhaust an
available state court remedy, the majority goes to great
lengths to explain why petitioner’s failure to exhaust is no
impediment to reaching the merits, reasoning even that the
exhaustion requirement has been satisfied, even though
neither party has challenged the district court’s contrary
conclusion in this appeal. In this regard, too, for the reasons
set forth below, I find the majority’s approach flawed.
II
In analyzing the exhaustion issue, the majority purports to
write on a blank slate, observing that, although the respondent
has not expressly asserted the defense, it is not waived and
may be raised sua sponte. Albeit true, this approach
nonetheless ignores the fact that the district court first raised
the issue sua sponte and, in a ruling that remains
unchallenged on appeal, held the exhaustion requirement had

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No. 02-4219 Clinkscale v. Carter 29
1The district court’s ruling is reflected in the following excerpts from
the magistrate judge’s report and recommendation, approved by the
district court over objection (on other grounds only):
A federal cour t may grant relief on a petition for a writ of
habeas corpus only if the applicant has exhausted the remedies
available in the state court. 28 U.S.C. § 22 54(b)(1)(A).
. . . .
Issues that must be raised in a post-conviction action
pursuant to O.R.C. § 2953.21 include claims which do not
appear on the face of the record and claims of ineffective
assistance of trial counsel where the defendant was represented
on direct appeal by the same attorney who represented him at
trial.
. . . .
In addition to raising each claim in the appropriate forum,
a habeas litigant, in order to preserve his constitutional claims
for habeas review, must present those claims all the way through
the Ohio courts.
. . . .
Since petitioner did not actually file a post-conviction
petition, the state courts did no t enforce a procedural bar, and it
is not entirely clear that petitioner is barred from pursuing po st-
conviction relief. . . . . Thus, Ohio law does not clearly foreclose
consideration of a post-conviction petition. Although such a
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.
. . . .
However, pursuant to 28 U.S.C. § 2254 (b)(2), [a]n
application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the state.”
Report and recommendation pp. 20 -25, J.A. 45 -50. Thus, the magistrate
judge turned to analyze the merits of petitioner’s claim only after
determining that it was unexhausted and after recognizing that the district
court was free only to deny, not grant, the claim without first requiring
exhaustion.
not been satisfied.1 It comes as no surprise that respondent
30 Clinkscale v. Carter No. 02-4219
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
claim was unexhausted and actually moved the district court
to stay proceedings on the petition pending exhaustion of
state remedies. Petition for writ of habeas corpus, ¶7, J.A. 8.
The parties’ reasons for focusing their appellate arguments
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
appeal are deemed abandoned. See Mitchell v. Chapman, 343
F.3d 811, 825 n.15 (6th Cir. 2003); Security Watch, Inc. v.
Sentinel Systems, Inc. 176 F.3d 369, 376 (6th Cir. 1999). If
the rule is adhered to, then the district court’s finding of non-
exhaustion must be left undisturbed. It follows that once we
have determined the district court’s denial of the claim on its
merits is flawed, but we refrain from remanding the matter for
reconsideration based on a fuller factual development, we are
left with a finding of non-exhaustion that should, ordinarily,
in compliance with 28 U.S.C. § 2254(b)(1) and in the
interests of comity, require dismissal of the claim pending
exhaustion. See Rockwell v. Yukins, 217 F.3d 421, 424-25
(6th Cir. 2000)(vacating judgment granting habeas relief and
remanding for dismissal without prejudice because petition
contained unexhausted claim, even though meritorious claim
had been exhausted).
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
majority’s approach is not only procedurally improper, but
also substantively erroneous. The conclusion that the claim
is exhausted is based on the finding that the claim was, on
direct review, “fairly presented” to the Ohio Court of Appeals
and Ohio Supreme Court. To reach this conclusion, the
majority relies on the established principle that exhaustion
does not necessarily require state court adjudication of the
asserted claim, and that a claim that is fairly presented but

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No. 02-4219 Clinkscale v. Carter 31
ignored by the state court may be deemed exhausted. The
facts of this case, however, do not come within this principle.
There is no dispute, of course, that petitioner did assert, on
direct review, his ineffective assistance claim based on the
late filing of the notice of alibi defense. The Ohio Court of
Appeals did not decide the merits of the claim, but neither did
it ignore the claim. Its analysis is contained in one paragraph:
In his third claim, defendant maintains that counsel
were ineffective for not timely filing defendant’s notice
of alibi. As noted, counsel did clearly indicate that they
were aware of the alibi witnesses before the disclosure
deadline set forth in Crim.R. 12.1; however, the record
contains no explanation of the reason behind the late
disclosure. For example, the record does not disclose
whether trial counsel failed to investigate or to interview
defendant’s alleged alibi witnesses. As a result, we are
unable to reach a determination as to whether the delay
was the result of trial strategy or was due to counsel’s
ineffectiveness as alleged. As the reason for the late
disclosure is not a part of the record before this court,
defendant must pursue his claim of ineffective assistance
based upon the late disclosure by way of a motion for
post-conviction relief.
Ohio Court of Appeals Opinion, Dec. 23, 1999, p.19, J.A.
417. The Ohio Supreme Court denied leave to appeal.
The Ohio courts thus refrained from reaching the merits of
the claim because the factual record was deemed incomplete.
Petitioner was expressly advised to pursue the claim by filing
a motion for post-conviction relief, i.e., a mechanism that
would potentially allow for supplementation of the factual
record through an evidentiary hearing.
Yet, quite apart from whether petitioner ever pursued the
recommended motion, the majority holds that petitioner had
exhausted the claim simply by including it in his direct
32 Clinkscale v. Carter No. 02-4219
2In footnote 5 of the majority opinion, mention is made of
petitioner’s motion for new trial, made after his direct appeal was denied.
In this motion for new trial, petitioner did assert his ineffective assistance
claim based on a supp lemented factual record . The motion had been
denied by the trial court as untimely and the appeal of this denial was
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.
During the pendency of the habeas petition in the district court, i.e.,
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
appeal. This holding flies in the face of the teaching of
Castille v. Peoples, 489 U.S. 346, 350-51 (1989). In Castille,
the Supreme Court made it clear that presenting a claim for
the first and only time in a procedural context in which its
merits will not necessarily be considered does not constitute
“fair presentation.” Id. at 351. Indeed, as the majority
recognizes, the exhaustion requirement demands that the state
courts be given a full and fair opportunity to rule on the
factual, as well as the legal, bases of a claim. Caver v.
Straub, 349 F.3d 340, 346 (6th Cir. 2003); Newton v. Million,
349 F.3d 873, 877 (6th Cir. 2003); Hannah v. Conley, 49 F.3d
1193, 1196 (6th Cir. 1995). Where, as here, petitioner’s fact-
based ineffective assistance claim was presented in a
procedural context in which the merits were not considered
because the factual record was incomplete, the claim can
hardly be deemed to have been “fairly presented.” See Hall
v. Huffman, 234 F.3d 1268 (Table), 2000 WL 1562821 at **3
(6th Cir. Oct. 11, 2000)(applying Castille under closely
analogous circumstances and remanding unexhausted claim
for dismissal without prejudice).
Accordingly, inasmuch as remand to the district court for
reconsideration of the merits based on a fuller factual
development is not acceptable to the majority, I would
alternatively affirm the district court’s ruling that the claim is
unexhausted and would therefore hold the claim subject to
dismissal without prejudice.2

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No. 02-4219 Clinkscale v. Carter 33
relief on the motion for new trial. Inexplicably, however, neither the
report and recommendation nor the district court judgment includes any
reference to these state court proceedings – in connection with either the
exhaustion or procedural default analysis.
In my opinion, though the majo rity has not relied on it, the outcome
of these subsequent state court proceedings represents arguably persuasive
evidence that petitioner had in fact exhausted (and procedurally defaulted)
his claim before the district court ruled o n the habeas petition. Hence, if
the matter were to be remanded for reconsideration of the merits, the
district court would be properly directed to also reconsider, as appropriate,
the exhaustion and procedural default issues in light of these further
develop ments.
3Again, the district court ignored the significance of petitioner’s
motio n for new trial.
III
Finally, for reasons derivative of the above exhaustion
analysis, I must take issue with the majority’s treatment of
procedural default as well. The district court rejected
respondent’s procedural default defense essentially because
the subject claim had not been exhausted (through the filing
of an appropriate motion for post-conviction relief) and the
state courts therefore did not have occasion to enforce a
procedural bar.3 Without even acknowledging the district
court’s ruling on the issue and the rationale therefore, the
majority likewise concludes that the Ohio appellate courts’
rejection of the claim on direct review was due not to
enforcement of a procedural bar, but due to the inadequacy of
the record. Ignoring the fact that the record was inadequate
because petitioner had not exhausted an available state
remedy, the majority nonetheless correctly concludes the
claim cannot be deemed procedurally defaulted on the basis
of the direct review proceedings alone.
The majority goes on to discuss the significance of the Ohio
courts’ disposition of petitioner’s motion for new trial. Even
though the motion’s untimeliness was clearly one reason for
34 Clinkscale v. Carter No. 02-4219
the trial court’s denial and the appellate court’s affimance of
the denial, the majority is “unable to say” the state courts
enforced a procedural bar because the state courts’ decisions
also rested on other grounds.
The exact rationale for the Ohio Court of Appeals’ decision
affirming denial of the motion for new trial is concededly
ambiguous, at least in part. Its significance to our exhaustion
and procedural default analyses is therefore uncertain. The
uncertainty is exacerbated by the unexplained failure of the
parties and the district court to address it in any way. Yet, the
Ohio courts’ disposition of the motion for new trial is
potentially significant to both the exhaustion and procedural
default analyses. These circumstances, too, counsel in favor
of remand to the district court for reconsideration, for
ordinarily, the Sixth Circuit will not consider an issue not
decided below unless “the proper resolution is beyond doubt”
or “injustice might otherwise result,” neither of which
circumstances is presented here. Baker v. Sunny Chevrolet,
Inc., 349 F.3d 862, 866 (6th Cir. 2003); Chao v. Hall Holding
Co., Inc., 285 F.3d 415, 427 (6th Cir. 2002). Accordingly, if
the case were to be remanded for reconsideration of the
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.
IV
In sum, although I agree that the district court’s denial of
the writ should be vacated, I believe that granting a
conditional writ of habeas corpus on the present record
constitutes overreaching. Instead, the matter should be
remanded to the district court for completion of the record
and reconsideration as indicated above.

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