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White v. Warden, Ross Correctional Institution

United States Court of Appeals, Sixth Circuit

October 8, 2019

Vincent D. White, Jr., Petitioner-Appellant,
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.


         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.

          Before: DAUGHTREY, GRIFFIN, and STRANCH, Circuit Judges



         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 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.


         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.

         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).

         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), ...

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