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Sixth Circuit: Ohio’s Stringent Post-Conviction Filing Deadline Opens Window for Federal Review Under Trevino

by Anthony Accurso

The U.S. Court of Appeals for the Sixth Circuit held that Ohio’s strict application of its post-conviction challenge deadline deprived a defendant of meaningful review of his ineffective assistance of counsel claim. 

Vincent White was convicted in an Ohio court of several violent crimes, including six counts of murder, and he was sentenced to life without parole. While preparing his direct appeal, White discovered that his trial attorney, Javier Armengau, was under indictment for 18 serious felonies during the time he represented White. Armengau was convicted on nine of the counts. 

White filed a timely direct appeal which asserted, among other things, a claim that Armengau’s indictment constituted a conflict of interest amounting to ineffective assistance of counsel (“IAC”). The Ohio Court of Appeals decided it could not adequately weigh White’s IAC claim because the record on appeal was insufficient, and the court was limited to facts established by the trial court. The Court of Appeals implied that a motion for post-conviction relief would be the proper vehicle for his claim because it would allow for an expansion of the record. 

However, the Court of Appeals issued its decision four months after the deadline for White to file a motion for post-conviction relief. White then filed a habeas motion under 28 U.S.C. § 2254 with the federal district court. The district court denied it, but issued a certificate of appealability as to the IAC claim relating to conflict of interest. 

The Sixth Circuit began by determining whether White’s claim was adjudicated on its merits. The Ohio Court of Appeals expressly rejected it could review his claim on the merits despite direct appeal in Ohio being a valid avenue for IAC claims. For this reason, the federal district court should have engaged in de novo review of the legal issues, not a merits review, especially since White never had the opportunity to expand the record regarding his IAC claim.

The Court then considered whether White’s late filing of his post-conviction relief motion precluded the federal court from considering his claim for lack of exhaustion. The Court used the four-prong analysis from Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986), in determining whether his claim is procedurally defaulted. 

The Court found White met the first three prongs because he failed to comply with Ohio’s procedural deadline, the State enforced the rule, and his failure foreclosed federal review. The Court was then required to determine whether White had cause to fail to follow the rule and was prejudiced by this failure. This fourth Maupin prong hinged on White’s appellate attorney’s understanding of the case and applicable law. White’s attorney correctly saw the IAC claim as reviewable on direct appeal but was mistaken as to whether the record was sufficiently developed to allow for review. It was because his lawyer made this mistake that White did not timely file a motion for post-conviction relief. 

The Court then explained 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.” It noted that defendants are not guaranteed a right to a lawyer during collateral proceedings, so they can’t rely on their pro se status as a means of overcoming a procedural default during the post-conviction stage. West v. Carpenter, 790 F.3d 693 (6th Cir. 2015). 

However, the U.S. Supreme Court announced a narrow exception to the general rule if the petitioner can show (1) he has a “substantial” claim of IAC, (2) he had “no counsel or counsel … was ineffective” during collateral-review stage, (3) that stage was the “initial” review of his claim, and (4) state law mandates IAC (trial counsel) claims be made initially in a collateral-review proceeding. Martinez v. Ryan, 566 U.S. 1 (2012). The following year, the Supreme Court modified the fourth prong by applying 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.” Trevino v. Thaler, 569 U.S. 413 (2013).

The Court applied Trevino and recognized Ohio’s procedure regarding IAC claims, which require additional fact-finding “do not offer most defendants a meaningful opportunity to present a claim of ineffective assistance of trial counsel on direct appeal,” and they “deprive the defendant of any opportunity at all for review of that claim.” In short, between White’s appellate attorney and the state’s procedural rules, he was deprived an opportunity to develop a factual record for his IAC claim. Thus, the Court ruled that “White is not procedurally barred from raising his ineffective-assistance claim….”

Accordingly, the Court vacated the decision of the district court and remanded with instructions to consider, in the first instance, White’s claim de novo and whether he is entitled to an evidentiary hearing to supplement the record. See: White v. Warden, 940 F.3d 270 (6th Cir. 2019). 

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