opinion: TERRELL v. MORRIS, SUPERINTENDENT, SOUTHERN OHIO CORRECTIONAL FACILITY
  No. 88-7535.
  Decided October 10, 1989
  Per Curiam.
  Petitioner Terrell is incarcerated in a state prison in Ohio. After applying for state-law postconviction relief, he petitioned for a federal writ of habeas corpus pursuant to 28 U. S. C. §2254 (1982 ed.).
  Terrell’s habeas petition includes an ineffective-assistance-of-counsel claim. The Ohio courts held in postconviction proceedings that Terrell had defaulted this claim by failing to raise it when represented by new counsel on direct appeal. In so doing, the Ohio courts relied upon State v. Cole, 2 Ohio St. 3d 112, 113-114, 443 N. E. 2d 169, 171 (1982). The Cole rule postdated Terrell’s appeal, which was decided on December 30, 1981. Before Cole, Ohio had permitted ineffective-assistance claims in collateral challenges even if a petitioner had not raised those claims when represented by new counsel on direct appeal. See State v. Hester, 45 Ohio St. 2d 71, 71-72, 74-75, 341 N. E. 2d 304, 305, 307 (1976) (permitting a postconviction ineffective assistance claim to go forward despite a failure to raise the issue on direct appeal); see also Cole, supra, at 113-114, 443 N. E. 2d, at 171 (expressly modifying Hester).
  Terrell thus could not have known that he would default his ineffective-assistance claim by his new counsel’s failure to raise it on direct appeal. Terrell argued to the Federal District Court that the State could not invoke its procedural default rule retroactively. The District Judge agreed and proceeded to the merits of Terrell’s ineffective-assistance claim.
  The Sixth Circuit disposed of Terrell’s pro se appeal in a per curiam, unpublished opinion. Terrell v. Marshall, 872 F. 2d 1029 (1989) (judgment order). The Court of Appeals held that “the District Court properly determined that Terrell’s” ineffective-assistance claim, as well as several other claims, “were not re viewable” because of Terrell’s “failure to raise these claims in state court proceedings.” App. to Pet. for Cert. A-2. The District Court had, however, made no such determination: the District Court reached the merits of the ineffective-assistance claim because the only applicable procedural default rule postdated Terrell’s conviction. The Court of Appeals neither noted nor addressed the retroactivity issue.
  The Sixth Circuit, by its unpublished opinion, affirmed a decision that the District Court never made, and so never reviewed that court’s actual decision. Review of the procedural bar and retroactivity issues should be undertaken based on a correct formulation of the ruling in the District Court. Accordingly, the motion for leave to proceed in forma pauperis and the petition for certiorari are granted. The judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings consistent with this opinion.
  It is so ordered.
  The author of the Court of Appeals’ unpublished opinion may have relied on the Magistrate’s conclusion that petitioner’s ineffective-assistanee-of-counsel claim was barred by procedural default. See App. to Pet. for Cert. C-4. The Magistrate, however, had. neither noted nor addressed the retroactivity issue that the District Court resolved in petitioner’s favor. Because the question whether the Ohio Supreme Court’s decision in State v. Cole, 2 Ohio St. 3d 112, 443 N. E. 2d 169 (1982), should be given retroactive effect may govern the disposition of a significant number of ineffective-assistance-of-counsel claims, the question clearly merits the attention of the Court of Appeals. Moreover, since the answer to the question requires a familiarity with Ohio law, it should not be addressed in this Court before we have the benefit of the Court of Appeals’ views.
choices: involuntary confession habeas corpus plea bargaining: the constitutionality of and/or the circumstances of its exercise retroactivity (of newly announced or newly enacted constitutional or statutory rights) search and seizure (other than as pertains to vehicles or Crime Control Act) search and seizure, vehicles search and seizure, Crime Control Act contempt of court or congress self-incrimination (other than as pertains to Miranda or immunity from prosecution) Miranda warnings self-incrimination, immunity from prosecution right to counsel (cf. indigents appointment of counsel or inadequate representation) cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty) cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts) line-up discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations) double jeopardy ex post facto (state) extra-legal jury influences: miscellaneous extra-legal jury influences: prejudicial statements or evidence extra-legal jury influences: contact with jurors outside courtroom extra-legal jury influences: jury instructions (not necessarily in criminal cases) extra-legal jury influences: voir dire (not necessarily a criminal case) extra-legal jury influences: prison garb or appearance extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment) extra-legal jury influences: pretrial publicity confrontation (right to confront accuser, call and cross-examine witnesses) subconstitutional fair procedure: confession of error subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy) subconstitutional fair procedure: entrapment subconstitutional fair procedure: exhaustion of remedies subconstitutional fair procedure: fugitive from justice subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case) subconstitutional fair procedure: stay of execution subconstitutional fair procedure: timeliness subconstitutional fair procedure: miscellaneous Federal Rules of Criminal Procedure statutory construction of criminal laws: assault statutory construction of criminal laws: bank robbery statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy) statutory construction of criminal laws: escape from custody statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury) statutory construction of criminal laws: financial (other than in fraud or internal revenue) statutory construction of criminal laws: firearms statutory construction of criminal laws: fraud statutory construction of criminal laws: gambling statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951 statutory construction of criminal laws: immigration (cf. immigration and naturalization) statutory construction of criminal laws: internal revenue (cf. Federal Taxation) statutory construction of criminal laws: Mann Act and related statutes statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol statutory construction of criminal laws: obstruction of justice statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements) statutory construction of criminal laws: Travel Act, 18 USC 1952 statutory construction of criminal laws: war crimes statutory construction of criminal laws: sentencing guidelines statutory construction of criminal laws: miscellaneous jury trial (right to, as distinct from extra-legal jury influences) speedy trial miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)