Vincent D. White, Jr., Petitioner-Appellant,
Warden, Ross Correctional Institution, Respondent-Appellee.
from the United States District Court for the Southern
District of Ohio at Columbus. No. 2:17-cv-00325-James L.
Graham, District Judge.
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
CRAIG DAUGHTREY, CIRCUIT JUDGE.
Vincent White seeks a writ of habeas corpus pursuant to 28
U.S.C. § 2254. 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.
AND PROCEDURAL BACKGROUND
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.
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.
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. 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).
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. State v. White, No. 18AP-158,
slip op. (Franklin Cty. Ct. of Common Pleas, Apr. 4, 2018).
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), ...