RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0259p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

VINCENT D. WHITE, JR.,

Petitioner-Appellant,

v.

WARDEN, ROSS CORRECTIONAL INSTITUTION,

Respondent-Appellee.

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No. 18-3277

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.

Decided and Filed: October 8, 2019

Before: DAUGHTREY, GRIFFIN, and STRANCH, Circuit Judges

_________________

COUNSEL

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.

_________________

OPINION

_________________

MARTHA CRAIG DAUGHTREY, CIRCUIT JUDGE. 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 

 

1Following this panel’s request for supplemental briefing, petitioner sought oral argument. We deem oral 

argument unnecessary in this case and deny petitioner’s request.

>
No. 18-3277 White v. Warden, Ross Correctional Inst. Page 2

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. 

FACTUAL AND PROCEDURAL BACKGROUND

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. 
No. 18-3277 White v. Warden, Ross Correctional Inst. Page 3

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). 

 

2White’s direct appeal and his state and federal habeas petitions raised multiple claims of ineffective 

assistance of counsel separate and distinct from his conflict-of-interest claim. For ease, and because the conflict-ofinterest claim is the only ineffective-assistance claim in front of this panel, for the remainder of this opinion we refer 

to it simply as “the ineffective-assistance claim.” 

3

In the district court, White moved for a stay so that he could continue pursuing his post-conviction appeals 

in state court. The district court denied that request, finding that such appeals would be fruitless and that the fact of

White’s assured denial sufficed to establish that he had exhausted his state court remedies. 
No. 18-3277 White v. Warden, Ross Correctional Inst. Page 4

In the district court, the warden argued that White procedurally defaulted his ineffectiveassistance 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), the court rejected White’s ineffective-assistance claim but granted a certificate 

of appealability.4 

STANDARD OF REVIEW

When considering a petition for a writ of habeas corpus, we review a district court’s legal 

conclusions de novo and its factual findings for clear error. Wilson v. Sheldon, 874 F.3d 470, 

474 (6th Cir. 2017). Petitions filed after 1996 are generally governed by AEDPA’s exacting 

standard. Id. However, AEDPA applies “only to claims that were adjudicated on the merits in 

State court proceedings.” Bies v. Sheldon, 775 F.3d 386, 395 (6th Cir. 2014) (internal quotation 

marks and citation omitted). Thus, contrary to the district court’s decision, AEDPA does not 

control White’s ineffective-assistance claim because no state court ever considered the merits. 

The only time a state court addressed this claim was on direct appeal. There, the Ohio 

Court of Appeals overruled White’s assignment of error because it “lack[ed] the necessary facts 

to fully consider” the claim. White, 2015 WL 9393518, at *3. Although the Supreme Court has 

explained that “it may be presumed that [a] state court adjudicated [a] claim on the merits,” this 

presumption is limited to situations in which there is an “absence of any indication or state-law 

procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011). 

A dismissal of a claim explicitly acknowledging a court’s procedural inability to sufficiently 

consider it constitutes an “indication” that the court did not adjudicate the claim on the merits. 

And, if there were any doubt about that, a review of Ohio law puts the uncertainty to rest. In 

State v. Cooperrider, 448 N.E.2d 452, 454 (Ohio 1983) (per curiam), the Ohio Supreme Court 

considered an ineffective-assistance-of-counsel claim raised on direct review. There, the lower 

court had overruled the claim because it could not “determine on the record before [it] whether” 

counsel’s assistance was ineffective. State v. Cooperrider, No. 81AP-939, 1982 WL 4121, at *2 

 

4A panel of this court denied White’s motion to expand the certificate of appealability. 
No. 18-3277 White v. Warden, Ross Correctional Inst. Page 5

(Ohio Ct. App. Apr. 22, 1982). Based on this language, the Ohio Supreme Court found it “clear 

that the court of appeals . . . did not adjudicate the issue,” and that res judicata did not prevent 

the defendant from seeking an evidentiary hearing. Cooperrider, 448 N.E.2d at 454. 

We likewise find it clear that the Ohio Court of Appeals did not adjudicate the merits of 

White’s ineffective-assistance claim. Therefore, AEDPA does not apply here. The district court 

should have considered White’s claim de novo, and we now apply that standard. See Bies, 

775 F.3d at 396. 

DISCUSSION

Federal courts may not consider a petitioner’s claims in federal habeas proceedings 

unless he has exhausted his state remedies and “compl[ied] with state procedural rules in 

presenting his claim to the appropriate state court.” Williams v. Anderson, 460 F.3d 789, 806 

(6th Cir. 2006). The district court determined, and we agree, that, despite the untimeliness of his 

post-conviction motion, White has satisfied the exhaustion requirement. See Clinkscale v. 

Carter, 375 F.3d 430, 438 (6th Cir. 2004) (holding that petitioner properly exhausted his 

ineffective-assistance claim by presenting it on direct appeal even though the court did not 

adjudicate the claim on the merits). A question remains, however, as to whether his untimeliness 

precludes his federal claim because he did not “meet the State’s procedural requirements for 

presenting his federal claims.” Coleman v. Thompson, 501 U.S. 722, 732 (1991). 

We engage in a four-part inquiry when determining whether a claim is 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. . . . 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. . . . [Fourth, the court must decide whether] there was cause for [the 

petitioner] to not follow the procedural rule and [whether] he was actually 

prejudiced by the alleged constitutional error.
No. 18-3277 White v. Warden, Ross Correctional Inst. Page 6

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986) (internal quotation marks and citations

omitted). “To inform this inquiry, we look to the last explained state court judgment.” Stojetz v. 

Ishee, 892 F.3d 175, 191 (6th Cir. 2018) (internal quotation marks and citations omitted). 

The trial court’s dismissal of White’s motion for post-conviction relief easily satisfies the 

first three prongs of the Maupin test. Ohio law contains a statutory deadline for collateral relief, 

which requires petitioners to file a motion for post-conviction relief within one year of the filing 

of transcripts in the petitioner’s direct appeal. Ohio Rev. Code § 2953.21(A)(2). The parties do 

not contest that White failed to meet this deadline or that his untimeliness was the basis of the 

trial court’s rejection of his claim and the denial of his motion for leave to appeal. See State v. 

White, No. 12CR-4418, slip op. (Franklin Cty. Ct. of Common Pleas, Nov. 30, 2017). And, a 

denial of post-conviction relief based on the petitioner’s untimeliness is an independent and 

adequate state ground to establish default. See, e.g., Walker v. Martin, 562 U.S. 307, 317 (2011); 

Hartman v. Bagley, 492 F.3d 347, 357–58 (6th Cir. 2007). 

In applying Maupin’s fourth prong, we are left to consider whether White had cause for 

his non-compliance. It is well established 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. Coleman, 501 U.S. at 752; West 

v. Carpenter, 790 F.3d 693, 697 (2015). Because the Constitution does not guarantee a right to 

an attorney in collateral proceedings, in most cases, defendants cannot rely on their pro se status 

to overcome a procedural default at the post-conviction stage. West, 790 F.3d at 697. 

However, “[a] prisoner’s inability to present a claim of trial error is of particular concern 

when the claim is one of ineffective assistance of counsel.” Martinez, 566 U.S. at 12. Thus, in 

Martinez v. Ryan, the Supreme Court announced a “narrow exception” to the general rule, 

available to petitioners who can meet four requirements. The petitioner must show that: (1) he 

has a “substantial” claim of ineffective assistance of trial counsel; (2) he had “no counsel or 

counsel . . . was ineffective” in his collateral-review proceeding; (3) the collateral-review 

proceeding was the “initial” review of the claim; and (4) state law requires ineffectiveassistance-of-trial-counsel claims to be raised in the first instance in a collateral-review 

proceeding. Id. at 9, 17. 
No. 18-3277 White v. Warden, Ross Correctional Inst. Page 7

The following year, considering Texas’s appellate process, the Court extended the 

Martinez exception by modifying the fourth requirement. See Trevino, 569 U.S. at 429. Trevino 

v. Thaler applied 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.” Id. 

As an initial matter, White certainly meets the first three Martinez requirements. First, he 

raises a “substantial claim of ineffective assistance.” Id. at 416 (quoting Martinez, 566 U.S. at 

17). White’s claim is not without “any merit” or “wholly without factual support.” Martinez, 

566 U.S. at 16. Although the record is limited, it does establish that Armengau was under 

indictment for significant, even shocking charges while serving as White’s counsel. This court 

has recognized that “a conflict of interest may arise where defense counsel is subject to a 

criminal investigation.” Moss v. United States, 323 F.3d 445, 472 (6th Cir. 2003). Furthermore, 

at least one of our sister circuits has found ineffective assistance in a comparable circumstance. 

See United States v. DeFalco, 644 F.2d 132, 136–37 (3d Cir. 1979). Other circuits have likewise 

acknowledged the possibility that an attorney under investigation or indictment may face 

disqualifying conflicts of interest and, as a result, perform ineffectively. See Reyes-Vejerano v. 

United States, 276 F.3d 94, 99 (1st Cir. 2002) (deciding that counsel was not ineffective but 

recognizing that “[t]he argument is not frivolous that a defense lawyer within the sights of a 

targeted criminal prosecution may find his personal interests at odds with his duty to a client.”); 

Armienti v. United States, 234 F.3d 820, 824–25 (2d Cir. 2000) (finding an ineffective-assistance 

claim “plausible” when defense lawyer was being criminally investigated by same prosecutors 

office as had charged defendant); Thompkins v. Cohen, 965 F.2d 330, 332 (7th Cir. 1992) 

(“A situation of this sort (the criminal defendant’s lawyer himself under criminal investigation)

. . . can create a conflict of interest.”). Second, the parties do not dispute that White was without 

counsel during his state collateral proceedings. And, third, the collateral-review proceeding 

would have been the “initial” review of his ineffective-assistance claim because, as we have 

already explained, the Ohio Court of Appeals deemed direct appeal an inappropriate forum for 

White’s ineffective-assistance claim. State v. White, No. 12CR-4418, slip op. (Franklin Cty. Ct. 

of Common Pleas, Nov. 30, 2017). 
No. 18-3277 White v. Warden, Ross Correctional Inst. Page 8

That leaves the fourth requirement of the Martinez-Trevino test. Although “[w]e have 

held that Martinez does not apply in Ohio because Ohio permits ineffective-assistance-of-trialcounsel claims on direct appeal,” a question remains regarding the applicability of Trevino to 

Ohio prisoners. Williams v. Mitchell, 792 F.3d 606, 615 (6th Cir. 2015). White can only 

establish cause to overcome his procedural default if we determine that Trevino applies in his 

circumstances—that is, if we find that it was “highly unlikely” that a “meaningful opportunity” 

existed for the Ohio Court of Appeals to review his ineffective-assistance claim on direct review. 

See Trevino, 569 U.S. at 429. 

“Ohio law appears to contemplate two kinds of ineffective assistance of counsel claims, 

those based only on evidence in the trial record and those based in part on evidence outside the 

record.” McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d 741, 751 (6th Cir. 2013). The 

first type of ineffective-assistance claim is not relevant here, and we make no consideration or 

decision as to Trevino’s application to such claims. Instead, we focus on the second variety of 

ineffective-assistance claims—those that rely on facts outside of the record. 

On direct appeal, Ohio law limits the reviewing court “to the record of the proceedings at 

trial.” Id. (quoting Morgan v. Eads, 818 N.E.2d 1157, 1159 (Ohio 2004)). In Trevino, the 

Supreme Court recognized that “the need to expand the trial court record” is critical to ensuring 

meaningful review. 569 U.S. at 428. Ohio courts, too, have recognized this necessity and have 

refused to adjudicate ineffective-assistance claims on direct appeal because of the need for 

additional evidence. See, e.g., State v. Smith, 477 N.E.2d 1128, 1131 n.1 (Ohio 1985) (noting 

that res judicata may not bar post-conviction relief where a court rejected defendant’s direct 

appeal based on the trial record alone); Cooperrider, 448 N.E.2d at 454 (holding that when “it is 

impossible to determine whether the attorney was ineffective in his representation of appellant 

where the allegations of ineffectiveness are based on facts not appearing in the record,” 

defendants should avail themselves of post-conviction evidentiary hearing procedures). In these 

instances, Ohio effectively requires defendants to raise ineffective-assistance claims in postconviction petitions. Indeed, the Ohio Court of Appeals did precisely this in White’s case. 

White, 2015 WL 9393518, at *3. Practically speaking, then, Ohio law makes it “virtually 
No. 18-3277 White v. Warden, Ross Correctional Inst. Page 9

impossible” for defendants to meaningfully raise an ineffective-assistance-of-trial-counsel claim 

on direct appeal if the claim relies on evidence outside the record. Trevino, 569 U.S. at 417. 

“Ohio . . . appears to expect appellate counsel to recognize the [two] types of [ineffectiveassistance] claims and follow the proper procedure.” McGuire, 738 F.3d at 751. According to 

White, his appellate counsel assured him that the Ohio Court of Appeals would consider his 

ineffective-assistance claim on direct appeal, perhaps thinking that the claim was clear on its 

face, without further evidence. The record does not contradict White, nor do we have any other 

reason to doubt his assertion at this stage. Given this advice, it makes sense that White did not 

know that he needed to file a motion for post-conviction relief until after he received the decision 

in his direct appeal, but by then his filing was already untimely. 

The severity of Ohio’s filing deadline for collateral relief compounded White’s 

procedural troubles. As already noted, under Ohio law, a post-conviction petition must be filed 

within one year of the filing of transcripts in a defendant’s direct appeal. Ohio Rev. Code 

§ 2953.21(A)(2). A review of White’s state court docket shows that his transcripts were filed on 

August 6, 2014. Ohio law, then, required that he file his post-conviction petition by August 5, 

2015. But the Court of Appeals did not issue its decision alerting White to his need for a postconviction petition, or clarifying which claims might be available to him in that forum, until 

more than four months after the deadline. White, 2015 WL 9393518, at *3. At that stage, White 

did not have the benefit of counsel, further contributing to his default. See Martinez, 566 U.S. at 

12 (“The prisoner, unlearned in the law, may not comply with the State’s procedural rules or may 

misapprehend the substantive details of federal constitutional law. . . . [And w]hile confined to 

prison, the prisoner is in no position to develop the evidentiary basis for a claim of ineffective 

assistance.”). 

In Martinez, the Supreme Court explained that providing an avenue to overcome 

procedural default when a petitioner proceeds pro se in an initial-review collateral proceeding 

“acknowledges, as an equitable matter, that the initial-review collateral proceeding, if undertaken 

without counsel . . . may not have been sufficient to ensure that proper consideration was given 

to a substantial claim.” Id. at 14. Trevino similarly recognized that procedural designs that “do[] 

not offer most defendants a meaningful opportunity to present a claim of ineffective assistance of 
No. 18-3277 White v. Warden, Ross Correctional Inst. Page 10

trial counsel on direct appeal . . . will deprive the defendant of any opportunity at all for review 

of [that] claim.” 569 U.S. at 428. The confluence of Ohio’s general rule requiring the 

presentation of ineffective-assistance claims on direct review unless the record lacks sufficient 

evidence, the incorrect advice from White’s appellate counsel that his record did contain 

sufficient evidence, and the tight procedural timeline imposed by Ohio’s post-conviction-relief 

statute left White without a “meaningful opportunity” to obtain review of his substantial 

ineffective-assistance claim. See id. 

Ohio’s procedural framework effectively “channel[ed] initial review of [White’s] 

constitutional claim to collateral proceedings.” Id. at 423. Accordingly, under the MartinezTrevino framework, we find that White has cause to overcome his procedural default because: 

he raised a substantial ineffective-assistance claim; he was without counsel during his postconviction proceedings; the post-conviction proceeding was the initial opportunity for a merits 

assessment of the claim; and the design and operation of Ohio procedural law rendered it “highly 

unlikely” his claim could be reviewed on direct appeal. Because we find that White has cause, 

he satisfies the fourth prong in Maupin and is not barred from raising his claim of ineffective 

assistance based on Armengau’s conflict of interest. See Maupin, 785 F.2d at 138; see also 

Detrich v. Ryan, 740 F.3d 1237, 1246 (9th Cir. 2013) (en banc) (concluding that after finding 

cause under Martinez, the trial court can continue to the merits of a petitioner’s ineffectiveassistance-of-trial-counsel claims); see also Workman v. Superintendent Albion SCI, 915 F.3d 

928, 940 (3d Cir. 2019) (same). 

Although, having determined that White has overcome his procedural default, we could 

proceed to the merits of his ineffective-assistance claim, we decline to do so for two reasons. 

First, as explained above, in its initial review of White’s claim, the district court applied an 

incorrect standard of review. We therefore think it best that the district court have the first 

chance to consider the claim de novo. 

Second, White has not yet been able to develop a factual record in support of his 

ineffective-assistance claim. The “absence of factual development . . . hamstrings this court’s 

ability to determine whether” his trial counsel was constitutionally ineffective. Woolbright v. 

Crews, 791 F.3d 628, 637 (6th Cir. 2015). In Woolbright, we faced a similar situation and found 
No. 18-3277 White v. Warden, Ross Correctional Inst. Page 11

it appropriate to remand the matter to the district court for “full reconsideration” of the claims, 

including a determination of whether to conduct an evidentiary hearing. Id. This measured 

approach seems to us the best way forward here as well. See Detrich, 740 F.3d at 1247 (noting 

that petitioner demonstrating cause and availing himself of the Martinez exception is entitled to 

evidentiary hearing notwithstanding 28 U.S.C. § 2254(e)(2)). 

CONCLUSION

For the reasons explained above, we conclude that White is not procedurally barred from 

raising his ineffective-assistance claim and that the district court erred by applying the incorrect 

standard of review. We deem it most appropriate for the district court to consider, in the first 

instance, White’s claim de novo, including whether he is entitled to an evidentiary hearing in 

order to supplement the record. We therefore VACATE the district court’s ruling and 

REMAND this case for further proceedings consistent with this opinion.