David B. Clinkscale v. Warden Lebanon Correctional
Filing
OPINION filed : The district court s denial of Clinkscale s petition is AFFIRMED, decision not for publication. Danny J. Boggs, AUTHORING Circuit Judge; Eugene E. Siler , Jr., Circuit Judge and Alice M. Batchelder, Circuit Judge.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0196n.06
Case No. 15-3300
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
DAVID B. CLINKSCALE,
Petitioner-Appellant,
v.
WARDEN, LEBANON CORRECTIONAL
INSTITUTION,
Respondent-Appellee.
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Apr 07, 2016
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF
OHIO
BEFORE: BOGGS, SILER, and BATCHELDER, Circuit Judges.
BOGGS, Circuit Judge. David Clinkscale received three separate jury trials involving the
shootings of Kenneth Coleman and Todne Williams. Each jury found Clinkscale guilty of
aggravated murder, attempted aggravated murder, kidnapping, aggravated robbery, and
aggravated burglary. The first judgment was vacated by the Sixth Circuit due to ineffective
assistance of counsel, Clinkscale v. Carter, 375 F.3d 430, 446 (6th Cir. 2004), and the second
judgment was vacated by the Supreme Court of Ohio because the trial court improperly replaced
a juror who became ill during deliberations, State v. Clinkscale, 911 N.E.2d 862, 863 (Ohio
2009).
After Clinkscale was convicted of the same crimes for the third time, he exhausted his
state-court remedies and petitioned the United States District Court for the Southern District of
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Case No. 15-3300, Clinkscale v. Warden, Lebanon Correctional Institution
Ohio for a writ of habeas corpus, seeking to have his third judgment vacated. The district court
denied his petition and issued a certificate of appealability on the following question: “Is the
Petitioner entitled to habeas corpus relief under Ake v. Oklahoma, 470 U.S. 68 (1985), in view of
the trial court’s denial of his request for funds to hire an investigator?” On appeal, Clinkscale
argues that the trial court’s denial of his request for funds violated Ake. He claims that without
the funds, he could not afford to pay an investigator to locate a key witness, Brian Fortner;
therefore, the trial court’s denial of funds deprived him of due process.
Under the Antiterrorism and Effective Death Penalty Act of 1996, “[a]n 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 one of two conditions is satisfied. 28 U.S.C. § 2254(d). The adjudication
must either have “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,” § 2254(d)(1), or “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.”
§ 2254(d)(2). Because Clinkscale argues that the trial court violated Ake, we evaluate his claim
under § 2254(d)(1).
In Ake, the Supreme Court held that an indigent defendant must be given a psychiatric
expert when his sanity is a significant issue in a capital case. 470 U.S. at 86–87. This circuit has
held that Ake requires the provision of an independent pathologist to determine a victim’s cause
of death, Terry v. Ress, 985 F.2d 283, 284 (6th Cir. 1993), and the Eighth Circuit has held that
Ake requires the provision of a hypnosis expert to explain the problems with hypnotically
induced recollections, Little v. Armontrout, 835 F.2d 1240, 1243 (8th Cir. 1987). In each of
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Case No. 15-3300, Clinkscale v. Warden, Lebanon Correctional Institution
these cases, the defendant sought access to a scientific expert. Here, instead, Clinkscale sought
funds for a general investigator. While the Tenth Circuit has considered claims involving the
denial of funds for an investigator, none of those cases held that the denial violated Ake. See
Rojem v. Gibson, 245 F.3d 1130, 1139 (10th Cir. 2001); Castro v. Ward, 138 F.3d 810, 826 (10th
Cir. 1998); Matthews v. Price, 83 F.3d 328, 335 (10th Cir. 1996).
Ake did not expressly establish a right to funds for a general investigator, and the
Supreme Court said as much in Caldwell v. Mississippi, 472 U.S. 320 (1985). In that case,
Caldwell argued that the trial court was required to appoint an investigator to assist him with his
defense. Id. at 323 n.1. The Supreme Court declined to address the issue because the argument
was insufficiently developed and stated that “[w]e therefore have no need to determine as a
matter of federal constitutional law what if any showing would have entitled a defendant to
assistance of the type sought here.” Ibid. Caldwell confirmed that Ake did not specifically
address the issue of whether indigent defendants are entitled to an investigator.
Ake did state more generally that defendants are entitled to the “basic tools of an adequate
defense.” 470 U.S. at 77 (quoting Britt v. North Carolina, 404 U.S. 226, 227 (1971)). In this
case, however, the trial court’s denial of funds did not prevent Clinkscale from putting on an
adequate defense. Clinkscale received public funds for an investigator in his first two trials.
Clinkscale, 375 F.3d at 434 (discussing first trial); State v. Clinkscale, No. 10AP–1123, 2011
WL 6202436, at *1 (Ohio Ct. App. Dec. 13, 2011) (discussing second trial).
His first
investigator interviewed Brian Fortner and noted that “Fortner confirmed that Clinkscale spent
the evening with him.” Clinkscale, 375 F.3d at 434. Clinkscale therefore knew that Fortner
could have served as an alibi witness long before he began to prepare for his third trial, and his
defense attorney should have been able to locate Fortner without a publicly funded investigator.
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As such, the trial court’s denial of funding did not deny Clinkscale the basic tools of an adequate
defense in violation of Ake.
The district court’s denial of Clinkscale’s petition is AFFIRMED.
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