Clinkscale v. Carter

• Decision Date: 08 July 2004
• Docket Number: No. 02-4219.,02-4219.
• Citation: 375 F.3d 430
• Parties: David B. CLINKSCALE, Petitioner-Appellant, v. Harold E. CARTER, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

375 F.3d 430

David B. CLINKSCALE, Petitioner-Appellant, v. Harold E. CARTER, Warden, Respondent-Appellee.

No. 02-4219.

United States Court of Appeals, Sixth Circuit.

Argued December 3, 2003.

Decided and Filed July 8, 2004.

Rehearing En Banc Denied September 17, 2004.

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Carol Wright (argued and briefed), Columbus, Ohio, for Appellant.

M. Scott Criss, Office of the Attorney General (argued and briefed), Columbus, OH, for Appellee.

Before MARTIN and MOORE, Circuit Judges; McKEAGUE, District Judge.^*

MARTIN, J., delivered the opinion of the court, in which MOORE, J., joined. McKEAGUE, D.J. (pp. 446-51), 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 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

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 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

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 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.

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...