Lopez v. Wilson

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Lopez v. Wilson No. 01-3875

ELECTRONIC CITATION: 2004 FED App. 0020P (6th Cir.)

File Name: 04a0020p.06 Thomas Price, OFFICE OF THE ATTORNEY GENERAL

OF OHIO, Columbus, Ohio, for Appellee.

UNITED STATES COURT OF APPEALS SUHRHEINRICH, J., delivered the opinion of the court, in

which ROGERS, J., joined. COLE, J. (p. 19), delivered a

FOR THE SIXTH CIRCUIT separate opinion concurring in the judgment.

_________________

_________________

FERNANDO LOPEZ, X

OPINION

Petitioner-Appellant, - _________________

-

- No. 01-3875

v. I. Introduction

-

>

, SUHRHEINRICH, Circuit Judge. Under Rule 26(B) of the

JULIUS WILSON, Warden, - Ohio Rules of Appellate Procedure, an Ohio defendant

Respondent-Appellee. - seeking to file an ineffective assistance of appellate counsel

N claim must file an application to reopen in the state court of

Appeal from the United States District Court appeals where the appeal was decided rather than in a state

for the Northern District of Ohio at Cleveland. trial court. In White v. Schotten, 201 F.3d 743, 752-53 (6th

No. 00-02416—Donald C. Nugent, District Judge. Cir.), cert. denied, 531 U.S. 940 (2000), this Court held that

an application to reopen appeal under Rule 26(B) of the Ohio

Argued: September 16, 2003 Rules of Appellate Procedure is part of a criminal defendant’s

direct appeal, rather than part of the state’s post-conviction

Decided and Filed: January 15, 2004 process. The difference matters because a defendant is

constitutionally entitled to counsel only during the direct

Before: SUHRHEINRICH, COLE, and ROGERS, Circuit appeal process. Compare Evitts v. Lucey, 469 U.S. 387, 396

Judges. (1985) (holding that a defendant is entitled to effective

assistance of counsel on direct appeal), with Pennsylvania v.

_________________ Finley, 481 U.S. 551, 555 (1987) (holding that a defendant is

not constitutionally entitled to counsel at any stage of

COUNSEL criminal proceedings beyond a direct appeal as of right).

Based on White, Petitioner Fernando Lopez claims in this

ARGUED: Robert D. Little, LAW OFFICE OF ROBERT habeas action that the state court’s denial of his request for

LITTLE, Maplewood, New Jersey, for Appellant. Douglas R. appointment of counsel to file a Rule 26(B) motion violated

Cole, OFFICE OF THE ATTORNEY GENERAL OF OHIO, his federal constitutional rights. Lopez appeals from the order

Columbus, Ohio, for Appellee. ON BRIEF: Robert D. of the district court denying his petition for writ of habeas

Little, LAW OFFICE OF ROBERT LITTLE, Maplewood, corpus on this ground. See 28 U.S.C. § 2254. This Court

New Jersey, for Appellant. David M. Gormley, Thelma granted a certificate of appealability on that issue.

1

No. 01-3875 Lopez v. Wilson 3 4 Lopez v. Wilson No. 01-3875

For the reasons that follow, we conclude that White is not superior appellate court. The Court held that a defendant had

controlling in this case, because the White decision predates a remedy nonetheless, by raising such claims in the Ohio

the AEDPA,1 which applies here, and that under the AEDPA, appellate courts under the then-extant version of Rule 26.

the state court’s decision was not contrary to clearly Murnahan 584 N.E.2d, 1290 n. 3. Although by its terms Rule

established Federal law. We hold that the district court did 26 seems to permit only reconsideration of “any cause or

not err in denying the writ. motion originally submitted on appeal,” the Ohio Supreme

Court “construe[d] claims of ineffective assistance of

II. Background appellate counsel to be tantamount to constitutional claims

that should have been presented on appeal,” and thus within

A. Rule 26(B) the scope of the rule. Id.

On July 1, 1993, Rule 26(B) of the Ohio Rules of Appellate At the same time, the Murnahan court recognized the

Procedure took effect. That rule provides in relevant part: imperfect fit between Rule 26 and ineffective assistance of

appellate claims and recommended that Rule 26 be amended.

A defendant in a criminal case may apply for reopening Id. at 1209 n.6. In response, the Ohio Supreme Court

of the appeal from the judgment of conviction and amended the rule in 1993, adding the above-quoted

sentence, based on a claim of ineffective assistance of subsection.2 However, neither the Ohio Supreme Court nor

appellate counsel. An application for reopening shall be

filed in the court of appeals where the appeal was

decided within ninety days from journalization of the 2

The Staff N ote to the 7-1-93 A mendme nt states in relevant p art:

appellate judgment unless the applicant shows good The 1993 amendment was in response to the Supreme

cause for filing at a later time. Court’s opinion in State v. Murnahan (1992), 63 Ohio St. 3d 60,

66 n.6. In Murnahan, the Co urt held that claims of ineffective

The Ohio Supreme Court adopted this rule after its decision assistance of appellate counsel may be raised in an application

in State v. Murnahan, 584 N.E.2d 1204 (Ohio 1992). In for reconsideration in the court of appeals, syl. 1, and requested

that a rule be drafted to govern suc h applications. Id. at 66 n.6.

Murnahan, counsel on direct appeal submitted an Anders App. R. 26 p reviously permitted applications for

brief and was permitted to withdraw. Murnahan filed a pro se reconsideration to be filed within ten days of the journalization

brief, but the Ohio Court of Appeals rejected his appeal. or announcement of the appellate decision. The Court noted in

Murnahan next sought post-conviction relief in the state trial Murnahan that although reconsideration under Rule 26 appeared

court under Ohio Rev. Code § 2953.21, claiming that his to be restricted to issues already presented to the ap pellate court,

the Court “construe[d] claims of ineffective assistance of

appellate counsel had been ineffective. The Ohio Supreme app ellate counsel to be tantamount to constitutional claims that

Court held that ineffective assistance of appellate claims are should have been presented on appea l, and but for their omission

not cognizable in post-conviction proceedings pursuant to the outcome of the case would be otherwise.” Id. at 65 n.3 .

Ohio Rev. Code. § 2953.21, because it would be improper for Because “claims of ineffective assistance of appellate counsel

an inferior court to rule on the adequacy of a proceeding in a may be left undiscovered due to the inadequacy of appellate

counsel or the inability of the defendant to identify such errors

within the time allotted for reconsideration,” the Court stated

that it may be necessary for defendants to request delayed

1

reconsideration. Id. at 65-66. The amend ment thus provides for

Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. reconsideration in criminal cases beyond the previous limitation

§ 2254 (d)(1) (1994 & Supp. VII) (AE DPA ). of time. The rule permits delayed reconsideration only of the

No. 01-3875 Lopez v. Wilson 5 6 Lopez v. Wilson No. 01-3875

the new rule indicated whether such proceedings were to be cannot be considered part of an Ohio post-conviction

treated as part of direct or collateral review. matter.

This Court did so in White, supra. Counsel in that case did If the application for delayed reconsideration is neither

not file a Rule 26(B) application until three years after the part of a state habeas nor state post-conviction

ninety-day limit had expired. Noting that an attorney’s failure proceeding, it must be a continuation of activities related

to meet a deadline in handling a client’s appeal falls below to the direct appeal itself. Because a defendant is entitled

minimal standards of competency imposed on counsel to to effective assistance of counsel on direct appeal, see

satisfy constitutional safeguards, and that a defendant only Evitts v. Lucey, 469 U.S. 387, 396 . . . (1985), such an

has a constitutional right to assistance of counsel on direct individual must be accorded effective assistance of

appeal, the question became whether Rule 26(B) applications counsel throughout all phases of that stage of the

were part of direct or collateral review. The White court criminal proceedings.

concluded that an application to reopen appeal under Rule

26(B) is part of a criminal defendant’s direct appeal, and White, 201 F.3d at 752-53.

because of that, counsel was constitutionally required.

B. Procedural History

The State of Ohio argues . . . that a petitioner such as

White has no constitutional right to counsel at any stage Lopez was convicted in 1998 of three counts of rape and

of criminal proceedings beyond a direct appeal as of three counts of gross sexual imposition. The lower courts

right. See Pennsylvania v. Finley, 481 U.S. 551, 555 . . . sentenced him to terms of life imprisonment on the rape

(1987). Without a right to counsel, the petitioner also counts and three years of imprisonment on each of the

has no commensurate right to effective assistance from remaining counts. The Ohio Court of Appeals affirmed the

that counsel. However, as this court’s decision in convictions and sentences on direct appeal. State v. Lopez,

Manning v. Alexander, 912 F.2d 878, 882 (6th Cir. No. 74096, 1999 WL 304527 (Ohio App. 1999). Lopez was

1999), made clear, Ohio law does not consider an attack represented by counsel during that appeal.

on the adequacy of appellate counsel to be proper in a

state habeas proceeding. See Manning, 912 F.2d at 882 In December 1999, more than six months after the state

(citing Manning v. Alexander, 50 Ohio St.3d 127, 553 court of appeals issued its judgment, Lopez filed a pro se

N.E.2d 264 (Ohio1990); In re: Petition of Brown, 49 application to reopen his appeal under Ohio R. App. P. 26(B),

Ohio St.3d 222, 551 N.E.2d 954 (1990)). Furthermore, alleging that his lawyer in his direct appeal was

Murnahan emphatically holds that any such attack constitutionally ineffective. Lopez also asked the state court

of appeals to appoint new counsel for him. The appellate

court ordered a copy of his trial transcript and ordered all

proceedings not previously transcribed as part of the direct

direct appeal and does not ap ply to ap peals related to post- appeal to be transcribed and filed with the court. On May 11,

conviction proceedings pursuant to R.C. 2953.21 . The

amendment permits applications to be filed more than ninety

2000, the Ohio Court of Appeals denied Lopez’s motion to

days after the appellate judgment’s journalization if good cause reopen the appeal and denied the motion for appointment of

is shown. See App. R. 1 4(B ). counsel, finding that Lopez had not shown that his original

appellate lawyer was ineffective. State v. Lopez, No. 74096,

(Ohio R. A pp. P . 26(b ), Staff note to 7-1 -93 amendme nt).

No. 01-3875 Lopez v. Wilson 7 8 Lopez v. Wilson No. 01-3875

2000 WL 574441 (Ohio App. 2000). The Ohio Supreme “defendant in a criminal case may apply for reopening of

Court declined to review that judgment. State v. Lopez, 732 the appeal from the judgment of conviction and sentence,

N.E.2d 999 (Ohio 2000). based on a claim of ineffective assistance of appellate

counsel”-- a civil, post-conviction or collateral

On September 21, 2000, Lopez filed his federal habeas proceeding for challenging a final judgment in a criminal

petition, raising two claims: (1) he was denied his federal case, or is it instead part of the defendant’s first-appeal-

right to the effective assistance of appellate counsel during his of-right in the criminal case?

application for reopening filed under Ohio Appellate Rule

26(B); and (2) he was denied his right to the effective III. AEDPA

assistance of appellate counsel on his first direct appeal. The

district court denied the petition, and denied a certificate of “Congress enacted AEDPA to reduce delays in the

appealability. The court held that Lopez was not entitled to execution of state and federal criminal sentences, . . . and to

habeas relief on these claims because the state court’s further the principles of comity, finality, and federalism.”

decisions were not contrary to or an unreasonable application Woodford v. Garceau, 123 S. Ct. 1398, 1401 (2003) (internal

of clearly established law as determined by the United States citations and quotation marks omitted). Congress did so

Supreme Court. See 28 U.S.C. § 2254(d); Williams v. Taylor, through both procedural requirements, see David v. Hall, 318

529 U.S. 362, 412 (2000). The district court noted as to the F.3d 343, 346 (1st Cir. 2003) (stating that “[o]ne of AEDPA’s

first claim, a lack of Supreme Court precedent supporting a main purposes was to compel habeas petitions to be filed

right to counsel in an application to reopen a direct appeal. promptly after conviction and direct review, to limit their

The district court also observed that, in White, this Court held number, and to permit delayed or second petitions only in

that an Ohio criminal defendant has the right to counsel fairly narrow and explicitly defined circumstances” (citing 28

during his application for reopening under Rule 26(B), but did U.S.C. § 2244(d)(1)(A)-(D); H.R.Rep. No. 104-518 at 111

not find it dispositive because White was decided prior to (1996)), and standards governing the merits of a habeas

Williams, and therefore, this Court had no reason to analyze application. See Woodford, 123 S. Ct. 1401. One of the

the state court opinion under the Williams factors. mechanisms for accomplishing these goals was an amended

version of 28 U.S.C. § 2254(d)(1), which places “new

Lopez appealed to this Court. On February 14, 2002, this constraint[s] on the power of a federal habeas court to grant

Court granted a certificate of appealability on the following a state prisoner’s application for a writ of habeas corpus with

issue: “Whether Lopez was denied the right to the effective respect to claims adjudicated on the merits in state court.”

assistance of appellate counsel during his application for Williams v. Taylor, 529 U.S. 362, 412 (2000).

reopening filed under Ohio App. R. 26(B).” Order dated

February 14, 2002. The Act provides in relevant part as follows:

On April 22, 2002, Respondent asked this Court to certify (d) An application for a writ of habeas corpus on behalf

the following question to the Ohio Supreme Court: of a person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that

Is a proceeding filed in the Ohio court of appeals under was adjudicated on the merits in State court proceedings

Rule 26(B) of the Ohio Rules of Appellate unless the adjudication of the claim–

Procedure–which provides in relevant part that a

No. 01-3875 Lopez v. Wilson 9 10 Lopez v. Wilson No. 01-3875

(1) resulted in a decision that was contrary to, or Supreme Court precedent or otherwise explain its reasoning.

involved an unreasonable application of, clearly However, the state court decision need not cite Supreme

established Federal law, as determined by the Supreme Court precedent, or even reflect awareness of Supreme Court

Court of the United States. cases, “so long as neither the reasoning nor the result of the

state-court decision contradicts them.” Early v. Packer, 537

28 U.S.C. § 2254(d)(1). In Williams, supra, the Supreme U.S. 3, 8 (2002) (per curiam).

Court explained the meaning of “contrary to” and

“unreasonable application.” A state court’s legal decision is IV. Analysis

“contrary to” clearly established federal law under §

2254(d)(1) if the state court arrived at a conclusion opposite A. Merits

to that reached by the Supreme Court on a question of law or

if the state court decided a case differently than the Supreme Lopez argues that the district court erred in denying the writ

Court’s decisions on materially indistinguishable facts. Id. at because the United States Supreme Court has found a

412-13. An “unreasonable application” occurs when the state constitutional right to appointed counsel, and this Court has

court correctly identified the correct legal principle from ruled that Ohio’s application to reopen a direct appeal is a

Supreme Court precedent but unreasonably applied that direct appeal requiring the appointment of counsel. See

principle to the facts of the case before it. Id. “[C]learly White, supra. Were this case not governed by the AEPDA,

established Federal law, as determined by the Supreme White, a pre-AEDPA decision, would be controlling and

Court,” refers to “the holdings, as opposed to the dicta, of [the Lopez would easily prevail on this point. However, the

Supreme] Court’s decisions as of the time of the relevant AEDPA applies here, requiring us to analyze the

state-court decision.” Id. at 412. constitutional question under the more deferential standards

set forth by that Act. Compare Taylor v. Withrow, 288 F.3d

Thus, according to the AEDPA and the Supreme Court, our 846, 850 (6th Cir. 2002) (noting that the AEDPA “sets a

inquiry begins with the relevant state court decision. Here, higher hurdle for those seeking habeas than before”), cert.

the Ohio Court of Appeals denied Lopez’s motion for denied, 537 U.S. 1007 (2002), with McQueen v. Scroggy, 99

appointment of counsel on May 11, 2000, stating merely that F.3d 1302, 1310 (6th Cir. 1996) (pre-AEDPA case; stating

“Motion by Appellant, Pro Se, For Appointment of Counsel that de novo standard of review applies to questions of federal

is Denied.”3 The state court did not identify controlling constitutional law). See also Price v. Vincent, 123 S. Ct. 1848

(2003) (reiterating § 2254 standards, as explained by Williams

court; faulting Sixth Circuit for reciting this standard but then

3 evaluating the respondent’s claim de novo rather than through

Ironically, in its opinion denying Petitioner’s pro se application to

reopen direct appeal, the Ohio Court of App eals cited White v. Schotten, the lens of § 2254(d)). In short, because the standard of

albeit for a different proposition: review is much more deferential under the AEDPA, White is

not controlling.

The fact that applicant’s appellate couns el did not present the

assignm ents of error as federal constitutional violations does not

preclude applicant from raising these issues in a federal habeas

petition and having them reviewed by a federal court if counsel’s counsel did not raise federal issues in state court].

failure to do so am ounted to ineffective assistance of appellate

counsel. See White v. Schotten , (6th Cir.2000), 201 F.3d 743. State v. Lopez, No. 74096, 2000 WL 574441, at *3 (N.D. Ohio May 11,

Consequently, applicant is not prejudiced [because his appellate 200 0).

No. 01-3875 Lopez v. Wilson 11 12 Lopez v. Wilson No. 01-3875

The White decision involved the application of Evitts to “a (emphasis added)). If 26(B) proceedings were not part of

unique aspect of Ohio law,” Rule 26(B). See McClendon v. the Ohio habeas or other post-conviction review, we

Sherman, 329 F.3d 490, 494 (6th Cir. 2003). Prior to reasoned, they must be part of direct review. Ibid. If

determining the federal constitutional question of whether the they were part of direct review, White had a

petitioner was entitled to counsel in filing his application to constitutional right to effective assistance of counsel. Id.

reopen direct appeal, the White court determined whether a at 752-53, 584 N.E.2d 1204. As he had been denied such

state procedural rule, 26(B), was part of direct or collateral assistance, we remanded for consideration of the merits

review. As a panel of this Court recently explained: of his claims. Id. at 754, 584 N.E.2d 1204. The United

States Supreme Court denied certiorari. Bagley v. White,

[In White] [w]e first noted that “an attorney’s failure or 531 U.S. 940 . . . (2000) (mem.).

refusal to abide by established time deadlines in handling

a client’s appeal is conduct falling below the minimal Lambert v. Warden, Ross Correctional, No. 01-34222, 2003

standards of competency that federal case law has WL 22071466, at *3 (6th Cir. Sept. 2, 2003) (emphasis

imposed upon counsel to satisfy constitutional added).

standards.” Id. at 752 (citing Strickland v. Washington,

466 U.S. 668, 698 . . . (1984), and Ludwig v. United While several of our published cases have purported to

States, 162 F.3d 456, 459 (6th Cir. 1998)). While the apply the rule of White in the AEDPA setting, see Bronaugh

Ohio Public Defender indisputably and grossly failed to v. Ohio, 235 F.3d 280 (6th Cir. 2000); Searcy v. Carter, 246

abide the ninety-day deadline for 26(B) applications and F.3d 515, 519 (6th Cir. 2002); Miller v. Collins, 305 F.3d

therefore rendered ineffective assistance of counsel, this 491, 493-95 (6th Cir. 2002); Griffin v. Rogers, 308 F.3d 647,

conclusion alone does not establish a constitutional 655 (6th Cir. 2002), in each of those cases, the question of

violation because a defendant only has a constitutional whether a Rule 26(B) motion was part of direct or collateral

right to effective assistance of counsel when there is a review was decided in the context of the proper application of

constitutional right to effective assistance of counsel the AEDPA statute of limitations and its tolling provision,

when there is a constitutional right to assistance of 28 U.S.C. § 2244(d)(1)(A) & (d)(2).4 In determining whether

counsel simpliciter. As there is such a constitutional a habeas petition is barred by the statute of limitations, a

right only on direct and not on collateral review, the federal court is not provided with a state court decision on the

resolution of [the] case depended on this classification

of 26(B) applications. Ibid. (citing Pennsylvania v.

4

Finley, 481 U.S. 551, 555 . . . (1987)). We noted that Under 28 U.S.C. § 2244(d)(1)(A), a conviction becomes final for

challenges to the constitutional effectiveness of appellate purposes of the one-year period of limitations upon “conclusion of direct

counsel cannot be brought in Ohio habeas proceedings. review or the expiration of the time for seeking such review.” Section

Ibid. (citing Manning v. Alexander, 912 F.2d 878, 882 2244(d)(2) provides that “[t]he tim e during which a properly filed

application for State post-conviction or other collateral review with

(6th Cir. 1990)). Then we concluded that such respect to the pertinent judgment or claim is pending shall not be counted

challenges cannot be brought in any Ohio post- toward any period of limitation under this subsection.” In other words,

conviction proceedings. Ibid. (citing Murnahan, 584 “[s]ection 2244 explicitly distinguishes between the conclusion of direct

N.E.2d at 1208 (holding “that claims of ineffective review, after which the limitation period begins to run, 28 U.S.C.

assistance of appellate counsel are not cognizable in post- § 2244(d )(1)(A), and post-conviction remedies, during which the

limitation perio d is merely tolled, § 2244(d)(2).” McClendon v. Sherman,

conviction proceedings pursuant to R.C. 2953.21.” 329 F.3d 490, 493 (6th Cir. 2003).

No. 01-3875 Lopez v. Wilson 13 14 Lopez v. Wilson No. 01-3875

issue, to which it owes deference under AEDPA, because no 357 U.S. 214, 215 . . . (1958) (per curiam) (invalidating

state court will have the opportunity to consider the issue. By state rule giving free transcripts only to defendants who

contrast, in cases such as this, in which a federal court must could convince a trial judge that “justice will thereby be

consider the nature of 26(B) application to determine whether promoted”); Burns v. Ohio, 360 U.S. 252 . . . (1959)

a criminal defendant has the right to counsel in filing such an (invalidating state requirement that indigent defendants

application, the federal court must grant AEDPA deference to pay fee before filing notice of appeal of conviction);

the state court’s conclusion that the defendant was not entitled Lane v. Brown, 372 U.S. 477 . . . (1963) (invalidating

to appointed counsel. Accordingly, even those post-AEDPA state procedure whereby meaningful appeal was possible

Sixth Circuit decisions considering the nature of 26(B) only if public defender requested a transcript); Draper v.

applications for the purpose of determining the timeliness of Washington, 372 U.S. 487 . . . (1963) (invalidating state

habeas petitions do not engage in the analysis required here procedure providing for free transcript only for a

– a determination of whether a state court’s decision is defendant who could satisfy the trial judge that his appeal

contrary to or an unreasonable application of federal law – was not frivolous).

and the holdings at those cases are properly limited to such

cases. Just as a transcript may by rule or custom be a

prerequisite to appellate review, the services of a lawyer

We now turn to the “clearly established Federal law” at the will for virtually every layman be necessary to present an

time of the Ohio Court of Appeals’ decision. Evitts v. Lucey, appeal in a form suitable for appellate consideration on

469 U.S. 387 (1985), which White itself relied upon, provides the merits. See Griffin, supra, 351 U.S. at 20 . . . .

the best overview of the applicable Supreme Court precedent: Therefore, Douglas v. California, supra, recognized that

the principles of Griffin required a State that afforded a

Almost a century ago, the Court held that the right of appeal to make that appeal more than a

Constitution does not require States to grant appeals as of “meaningless ritual” by supplying an indigent appellant

right to criminal defendants seeking to review alleged in a criminal case with an attorney. 372 U.S. at 358 . . . .

trial court errors. McKane v. Durston, 153 U.S. 684 . . . This right to counsel is limited to the first appeal as of

(1894). Nonetheless, if a State has created appellate right, see Ross v. Moffitt, 417 U.S. 600 . . . (1974), and

courts as “an integral part of the . . . system for finally the attorney need not advance every argument, regardless

adjudicating the guilt or innocence of a defendant,” of merit, urged by the appellant, see Jones v. Barnes, 463

Griffin v. Illinois, 351 U.S., at 18 . . . , the procedures U.S. 745 . . . (1983). But the attorney must be available

used in deciding appeals must comport with the demands to assist in preparing and submitting a brief to the

of the Due Process and Equal Protection Clauses of the appellate court, Swenson v. Bosler, 386 U.S. 258 . . .

Constitution. In Griffin itself, a transcript of the trial (1967) (per curiam), and must play the role of an active

court proceedings was a prerequisite to a decision on the advocate, rather than a mere friend of the court assisting

merits of an appeal. See id., at 13-14 . . . . We held that in a detached evaluation of the appellant’s claim. See

the State must provide such a transcript to indigent Anders v. California, 386 U.S. 738 . . . (1967); see also

criminal appellants who could not afford to buy one if Entsminger v. Iowa, 386 U.S. 748 . . . (1967).

that was the only way to assure an “adequate and

effective” appeal. Id. at 20 . . . ; see also Eskridge v. Evitts, 469 U.S. at 393-94.

Washington State Board of Prison Terms and Paroles,

No. 01-3875 Lopez v. Wilson 15 16 Lopez v. Wilson No. 01-3875

As Evitts’ canvassing of the relevant precedent reflects, the by an appellate court. We are dealing only with the first

Supreme Court has never held that a criminal defendant has appeal, granted as a matter of right to rich and poor alike

the right to assistance of counsel to file an application to (Cal. Penal Code §§ 1235, 1237), from a criminal

reopen a direct appeal. The question becomes whether the conviction.

facts of the present case are “materially indistinguishable”

from one of the foregoing decisions but with a different Douglas, 372 U.S. at 356.

result. See Williams, 529 U.S. at 406. None of the foregoing

cases are factually analogous, however. To begin with, only In Evitts, the defendant’s retained counsel filed a timely

a few of those cases actually deal with access to counsel per notice of appeal but failed to file the statement of appeal as

se, and only two, Douglas v. California, 372 U.S. 353 (1963), required by a state rule of appellate procedure when he filed

and Evitts, found the right to assistance of counsel on appeal the brief and record on appeal, resulting in dismissal of the

as of right. In Douglas, the indigent defendants were denied appeal. Thus, the issue in Evitts was whether the Due Process

their request for the assistance of counsel on appeal as of Clause of the Fourteenth Amendment guarantees the criminal

right. The Douglas court found that the defendants were defendant the right to the effective assistance of counsel on his

denied equal protection of the law where their one appeal of first appeal as of right. The Supreme Court held that it did.

right was decided without the benefit of counsel. The

Douglas Court analogized to Griffin v. Illinois, 351 U.S. 12 The Supreme Court found no right to appointed counsel in

(1956): Ross v. Moffitt, 417 U.S. 600 (1974) and Pennsylvania v.

Finley, 481 U.S. 551 (1987). In Ross, the defendant was

In Griffin v. Illinois, we held that a State may not grant denied appointment of counsel for discretionary review, after

appellate review in such a way as to discriminate against his convictions were affirmed on his appeals of right by the

some convicted defendants on account of their poverty. state court of appeals. The Ross Court held that the rule of

There, as in Draper v. Washington, 372 U.S. 487, . . . the Douglas did not extend to discretionary state appeals and for

right to a free transcript on appeal was in issue. Here the petitions of certiorari. In Finley, the Supreme Court held that

issue is whether or not an indigent shall be denied the a state law providing prisoners assistance of counsel in

assistance of counsel on appeal. In either case the evil is collateral postconviction proceedings did not require full

the same: discrimination against the indigent. For there procedural protections which the Constitution extends for trial

can be no equal justice where the kind of an appeal a man and first appeal as of right. The Finley Court reasoned that

enjoys ‘depends on the amount of money he has.’ Griffin “since a defendant has no constitutional right to counsel when

v. Illinois, supra, at p. 19 . . . . pursuing a discretionary appeal on direct review of his

conviction, a fortiorari, he has no such right when attacking

Douglas, 372 U.S. at 355. Significantly, the Supreme Court a conviction that has long since become final upon exhaustion

limited its holding as follows: of the appellate process.” Id. at 555.

We are not here concerned with problems that might Here, Lopez’s request for appointed counsel to file an

arise from the denial of counsel for the preparation of a application to reopen his first appeal as of right is somewhere

petition for discretionary or mandatory review beyond “beyond the stage in the appellate process at which the claims

the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an

have once been presented by a lawyer and passed upon appellate court.” Douglas, 372 U.S. at 356. Although a panel

No. 01-3875 Lopez v. Wilson 17 18 Lopez v. Wilson No. 01-3875

of this Court upon de novo review has determined that such for purposes of determining whether the federal question

a motion falls under the rubric of a direct appeal, under the presented.

more deferential standard of review set forth in the AEDPA,

it cannot be said that the Ohio Court of Appeals’ decision V. Conclusion

denying the right to appointed counsel was contrary to

“clearly established Federal law as determined by the For the foregoing reasons, the judgment of the district court

Supreme Court,” because the result is not different from a denying Petitioner’s petition for writ of habeas corpus is

case with materially indistinguishable facts. AFFIRMED. Petitioner’s motion to certify is DENIED.

In sum, as the district court held, the decision of the state

appellate court denying Lopez’s request for appointment of

counsel was not contrary to “clearly established Federal law,

as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(d)(1).

B. Motion to Certify

The Warden has also asked us to certify to the Ohio

Supreme Court the question of whether a Rule 26(B) motion

to reopen is properly characterized as a civil, post-conviction

proceeding for challenging a final judgment in a criminal

case, or is instead part of the defendant’s first appeal as of

right in a criminal case. Rightly or wrongly, see Lambert,

2003 WL 22071466, at *7-8, this question has already been

addressed by this Circuit in White. Thus, a request for further

clarification by the Ohio Supreme Court by this panel would

be improper, because the only reason for this panel to certify

a question would be to revisit the prior panel’s decision,

which we cannot do. See Salmi v. Secretary of Health &

Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“A panel

of this Court cannot overrule the decision of another panel.

The prior decision remains controlling authority unless an

inconsistent decision of the United States Supreme Court

requires modification of the decision or this Court sitting en

banc overrules the prior decision.”); see also 6th Cir. Rule

206(c) (stating that a published panel opinion is binding on all

subsequent panels). In any event, we would not be bound by

the state courts’ characterization of Rule 26(B) proceedings

No. 01-3875 Lopez v. Wilson 19

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CONCURRENCE

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R. GUY COLE, JR., Circuit Judge, concurring in the

judgment. I concur only in the judgment reached by the

majority and agree that Lopez’s petition for a writ of habeas

corpus must be denied. The crucial inquiry in this case is

whether the state’s decision to deny Lopez counsel with

respect to his motion to reopen an appeal was contrary to

clearly established federal law as determined by the United

States Supreme Court. Because the Supreme Court has not

established that criminal defendants are entitled to counsel in

a motion to reopen an appeal nor that such a motion is part of

a direct appeal, Lopez is not entitled to habeas relief pursuant

to the AEDPA. Absent clearly established law by the

Supreme Court with respect to those issues, the state court

was not bound by this Circuit’s characterization of Rule

26(B) proceedings as part of a criminal defendant’s direct

appeal.