George T. Franklin, Petitioner-Appellee/cross-Appellant v. Carl S. Anderson, Warden, Respondent-Appellant/cross-Appellee

BATCHELDER, Circuit Judge,

dissenting.

I respectfully dissent. I would hold that Franklin’s claims should be dismissed for procedural default under Maupin v. Smith because Ohio’s First District Court of Appeals relied on independent and adequate state grounds when it denied Franklin’s Application for Delayed Reconsideration. 785 F.2d 135 (6th Cir.1986). Franklin clearly failed to comply with a state procedural rule that was both applicable to his case and enforced by Ohio courts. 1

The majority holds that the third prong of the Maupin test was not satisfied due to uneven application of the good cause exception, but prior Sixth Circuit cases suggest otherwise. Under that prong of the test, this court must decide whether the procedural rule relied upon by the state is an “‘adequate and independent’ state ground on which the state can rely to foreclose review of a federal constitutional claim.” Maupin, 785 F.2d at 138 . To be “independent,” the procedural rule must rely in no part on federal law. Coleman v. Thompson, 501 U.S. 722, 732-33 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991). To be “adequate,” the rule must have been firmly established and regularly followed by state courts at the time of its application to Franklin. Ford v. Georgia, 498 U.S. 411, 423-24 , 111 S.Ct. 850 , 112 L.Ed.2d 935 (1991). A rule is firmly established if, at the time of the petitioner’s actions giving rise to the default, the petitioner could be deemed to have been apprised of the rule’s existence. Hutchison v. Bell, 303 F.3d 720, 737 (6th Cir.2002). Finally, whether a rule is regularly followed is determined as of the date of the petitioner’s conviction. Rogers v. Howes, 144 F.3d 990 , 994 n. 5 (6th Cir.1998).

This circuit’s precedent reveals that the rule applied to Franklin was both independent and adequate at the time of its application. Significantly, Franklin’s case arose in Hamilton County. In Sowell v. Bradshaw, this court declined to review an ineffective assistance claim based on a Rule 26 procedural bar. 372 F.3d 821 , 827 n. 2 (6th Cir.2004). We held that “the procedure required by Murnahan was the procedure that had been required since at least 1983 by the Ohio Court of Appeals in Hamilton County, where [the petitioner’s] trial and appeal were conducted.” Id. (citing Ohio v. Rone, 1983 WL 5172 , at *4 (Ohio Ct.App. Aug.31, 1983)). In Coleman v. Mitchell, we held that “[b]efore the Ohio Supreme Court’s decision in Murnahan, it was well established in [Hamilton County], *432 the appellate district in which Coleman’s appeal was heard, that claims of ineffective assistance of appellate counsel were to be raised in a delayed motion for reconsideration and were not cognizable in state post-conviction proceedings.” 244 F.3d 533, 540 (6th Cir.2001). In Hicks v. Collins, we held that a petitioner had procedurally defaulted his ineffective assistance of appellate counsel claim because Mumahan’s rule was “well settled” in Hamilton County by September of 1992 and was therefore an independent and adequate state ground. 384 F.3d 204, 212 (6th Cir.2004). Based on the foregoing, there is no question that Ohio courts’ application of Mur-nahan’s good cause exception does not fail the third prong of the Maupin test.

The majority attempts to distinguish Hicks by noting that the petitioner in that case filed his motion prior to the Mumahan decision, which the majority views as overriding the ten-day period allotted to motions for reconsideration. I think the majority over-states Murnahan. That case explicitly stated that motions such as Franklin’s should be filed “in the court of appeals where the alleged error took place pursuant to App. R. 26 .... ” State v. Murnahan, 63 Ohio St.3d 60 , 584 N.E.2d 1204, 1209 (1992). In light of the court’s directive, it cannot be said that Franklin was not apprised of the rule for purposes of the Hutchison and Ford cases. The fact that Rule 26 was later amended to extend the filing period is irrelevant. Consequently, there is little to distinguish Franklin’s case from the Hicks case. I would hold that his claims are procedurally barred.

. Although the majority asserts that the Murnahan rule was not enforced by Ohio courts, it cites nearly a dozen cases enforcing the rule over the five-year period immediately following Franklin’s motion. Furthermore, Sixth Circuit precedent establishes that the rule was applied in Hamilton County, where Franklin appeared, as early as 1983. See Sowell v. Bradshaw, 372 F.3d 821 , 827 n. 2 (6th Cir.2004) (citing Ohio v. Rone, 1983 WL 5172 , at *4 (Ohio Ct.App. Aug.31, 1983)).