Appendix — Mack v. Paris

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99118 4 Jan 1 4 200

No. OE THE CLERS

In The Supreme Court of the United States

LAURENCE MACK, WARDEN,

Petitioner,

-

DAVID L. PARIS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

BETTY D. MONTGOMERY

Attorney General of Ohio

EDWARD B. FOLEY*

State Solicitor

*Counsel of Record

DAVID M. GORMLEY

STEPHEN P. CARNEY

Associate Solicitors

MATTHEW J. LAMPKE

Assistant Solicitor

30 E. Broad Street, 17" Floor

Columbus, Ohio 43215-3428

(614) 466-8980

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TABLE OF CONTENTS

Appendix A (court of appeals’ opinion,

May 26, 1999) (1999 WL 357815) ...c.ceecccesesseeees la

Appendix B (court of appeals’ order

denying rehearing, August 19, 1999) 000... 12a

Appendix C (court of appeals’ opinion,

PR ITEE Dy, PPM eeiconieeitiunilaccnhscidahutabiihucbitiaiesincnideebiniaaitae I4a

Appendix D (district court’s opinion,

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Appendix E (magistrate judge's report and

recommendation, April 17, 1997)... eee 26a

Appendix F (magistrate judge’s supplemental

report and recommendation, June 4, 1997) ........32a

Appendix G (Ohio Supreme Court’s opinion,

August 7, 1996) (76 Ohio St. 3d 270,

ee SM PUN ratcienesiaitamsehbstliaslisaisnandednianscloipbisinbia 44a

Appendix H (Ohio court of appeals’ opinion,

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NOTICE: THIS IS AN UNPUBLISHED OPINION

No. 97-4129

DAVID PARIS,

Petitioner-Appellant,

Vv.

MELODY TURNER, WARDEN

Respondent-Appellee.

Argued: November 6, 1998

Decided and Filed: May 26, 1999

Before: MERRITT, COLE, and FARRIS, [FN*] Circuit

Judges.

FN* The Honorable Jerome Farris, Circuit Judge of the

United States Court of Appeals for the Ninth Circuit. sitting

by designation.

ORDER

The court having received a petition for rehearing en

banc, and upon review of the petition by the original hearing

panel, the panel grants the petition to rehear, vacates and sets

(la)

).

~t

aside the original decision and issues a new decision as

follows:

David Paris appeals the district court's dismissal of

his habeas corpus petition in which he challenges his 199]

conviction for felonious assault’ by contending that he

received ineffective assistance of counsel on direct appeal.

The District court dismissed the petition on grounds of

procedural default, finding that Paris failed to tile his

ineffective assistance claim within the ninety-day deadline set

forth by Ohio App. R. 26(B). For the reasons that follow, we

REVERSE the judgment of the District Court.

On June 21, 1991 Paris was convicted of assaulting

Darius Walker, a young boy. Paris appealed his conviction to

the Ohio Court of Appeals and, because he was indigent,

received appointed counsel. Paris's appointed counsel,

Stephen Schutte, filed a brief which contained a short five-

paragraph argument that failed to address what Paris

contends was his meritorious ground for appeal: the trial

court's admission of the out-of-court statements of a four-

year-old declarant without conducting a voir dire hearing to

determine competence. Keisha Walker, the four-year-old

sister Of Darius, made the out-of court statements in question

at approximately 11:37 a.m. on September 17, 1990. This

was thirteen hours after the alleged assault of Darius Walker.

During these thirteen hours, Keisha had slept, awoken, and

spent several hours with her babysitter. Keisha's out-of-court

statements were admitted pursuant to the excited utterance

exception to the hearsay rule. In order for the excited

utterance exception to apply, it must be established that the

exciting influence had not lost its sway over the faculties of

the declarant before the making of the statement. After

thirteen hours we think that the startling event of the assault

of her brother had lost its dominion over Keisha's reflective

3a

faculties. See, Potter v. Baker, 162 Ohio St. 488, 496 (1955).

In addition, Keisha's statement was not an unreflective one as

it is required to be to qualify as an excited utterance under

Ohio law. /d. at 495-96. Keisha had not said anything about

the incident until questioned by two paramedics who arrived

at her home. The United States Supreme Court has

recognized that children are susceptible to suggestion during

questioning and that unless the circumstances of a child's

questioning carry sufficient particularized guarantees of

trustworthiness to establish the absence of suggestion, the

Confrontation Clause bars admitting children’s hearsay

answers into evidence. Idaho v. Wright, 497 U.S. 805, 813

(1990). After answering the paramedics questions, Keisha

was taken to the hospital where she was interrogated by three

individuals who recounted her answers at trial. Keisha's

statements to these individuals were admitted pursuant to the

excited utterance exception. We find that the paramedics

prior questioning of Keisha tainted any exciting influence

that might have stilled Keisha's reflective capacity and thus

the admission of these statements was error. Under these

facts, we conclude that in his appellate brief, Schutte failed to

raise obvious errors of the trial court.

On March 26, 1992, the Ohio Court of Appeals

denied Paris's appeal. Four months passed before Schutte

informed Paris that his appeal was denied. Upon learning of

the outcome of his appeal, Paris contacted the Ohio Public

Defender for legal assistance. The Public Defender placed

Paris on a waiting list for three years because of the large

caseload and limited personnel of the Public Defender's

office.

In August 1995, the Public Defender finally filed a

motion in the Ohio Court of Appeals to reopen Paris's case.

4a

The Ohio Court of Appeals denied the motion on October 23,

1995, based on Ohio App. R. 26(B), which provides:

A defendant in a criminal case may apply for

reopening of the appeal from the judgment and conviction

and sentence, based on a claim of ineffective assistance of

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 appellate judgment

unless the application shows good cause for filing at a later

lime.

The court held that Paris failed to show “good cause”

for filing his motion three years after the Ohio Court of

Appeals decision, The Court of Appeals’ decision was

affirmed by the Ohio Supreme Court. State v. Paris, 76 Ohio

St.3d 270, 667 N.E.2d 390 (1996),

On October 21, 1996, Paris filed a petition for a writ

of habeas corpus in the United States District Court for the

Southern District of Ohio, Paris's petition was dismissed

without reaching the merits because the district court found

that Paris had procedurally defaulted by not abiding by the

time limitations set forth in Ohio App. Rule 26(B) and was

unable to show cause and prejudice for the default. Paris

made a timely appeal to this court,

This court examines four factors when deciding

whether a petitioner's state procedural default precludes

consideration of the merits of a habeas corpus petition: (1)

whether the state has a procedural rule that is applicable to

the petitioner and with which the petitioner has failed to

comply; (2) whether the state courts actually enforce the state

procedural rule; (3) whether the state procedural rule is an

adequate and independent state ground that forecloses review

Sa

of a federal constitutional claim; and (4) whether the

petitioner can show cause for failing to follow the rule and

that he was prejudiced as a result. Maupin v. Smith, 785 F.2d

135, 138 (6th Cir.1986). In order for a state rule to serve as a

procedural default, the court must answer the first three

inquiries in the affirmative and the fourth in the negative.

Paris asserts that he can establish cause and prejudice

for his failure to follow Ohio App. R. 26(B). He first points

to his attorney's failure to inform him of the result of his

appeal of right for four months. It is true that Paris's attorney

so failed to inform him. This explains 120 days of the more

than three year delay. Moreover, Paris's attorney also failed to

communicate to his client how to proceed with further

appeals. The United States Supreme Court has held that

ineffective assistance of counsel constitutes cause for

procedural default. Murray v. Carrier, 477 U.S. 478, 488

(1986). We have no difficulty in finding that Schutte

provided ineffective assistance of appellate counsel as

defined under Strickland v. Washington, 466 U.S. 668

(1984).

After learning of the outcome of this appeal, Paris

contacted the Ohio Public Defender for legal assistance.

Because of the large caseload of the Public Defender, Paris

was placed on a three year waiting list. The District Court

concluded that Paris's claim was barred because he failed to

appeal the decision of the Ohio Court of Appeals for three

years after his attorney informed him of the Court of Appeals

decision. We cannot agree with the District Court. First,

Paris's appellate attorney on his appeal of right gave him no

guidance on how to further appeal and failed to develop the

legal issues that would most likely allow Paris to succeed on

appeal. Because of this, we do not think that it can fairly be

said that Paris truly had his first appeal as of right. Second, it

A2.

would be unjust to blame a layman such as Paris for the

backload at the Ohio Public Detender's Office. They did not

inform him that he was in danger of procedural default and as

a layman it would not be evident to him that his claim might

procedurally expire while in the hands of the Public

‘Defender. To hold otherwise would be to allow’ the

incompetency of Paris's appellate counsel and the backlog at

the Ohio Public Defender's office to eviscerate Paris's right to

a meaningful first appeal. Hence, we find that the cause for

Paris's delay is the incompetence of his appellate counsel and

the backlog at the Ohio Public Defenders office.

Paris is likewise able to show prejudice. The Ohio

trial court wrongly interpreted the law of hearsay in Ohio and

violated the Confrontation Clause of the United States

Constitution, thus admitting testimony in violation of Paris's

rights under state and federal law.

Accordingly, the case is remanded to the District

Court with instructions to issue the writ of habeas corpus,

giving the state a reasonable time to retry the petitioner.

FARRIS, J., Circuit Judge, dissenting.

Paris has demonstrated neither cause for his

procedural default nor prejudice therefrom. Thus, I dissent.

I. Cause

The majority holds that the incompetence of Paris's

appellate counsel and the backlog at the Ohio Public

Defender's office constitute cause for his delay. Both grounds

are untenable.

The Supreme Court has held that ineffective

assistance of counsel cannot constitute cause if it occurs at a

Stage where the petitioner is not constitutionally entitled to

counsel. See Coleman v. Thompson, 501 U.S. 722, 751-53

(1991), After Paris's direct appeal was denied, he had no right

to counsel. See Pennsylvania vy. Finley, 481 U.S. 551, 555

(1987). Therefore, the fact that after this point (1) Paris's

attorney failed to communicate with him, and (2) the Public

Defender was too busy to press his post-conviction claim for

more than three years, cannot satisfy the legal definition of

cause. Under these circumstances, Paris cannot claim that a

bad lawyer is worse than no lawyer at all.

The majority not only ignores the relevant Supreme

Court case law, it sets a dangerous precedent. The vast

majority of Paris's lengthy delay in filing his Rule 26(B)

petition is attributable to the backlog at the Public Defender,

not the deficiency of his counsel on direct appeal. If Paris

had hired private counsel for the post-conviction proceedings,

the majority surely would not accept “backlog” as an excuse

for delay. Nor would it allow a pro se petitioner to sit on his

claim for so long. The result should be no different where

the Public Defender's office serves as counsel. See State v.

White, 72 Ohio St.3d 91 (1995). These attorneys are no less

capable of adhering to procedural rules than the rest of the

bar.

8a

Finally, a prior panel of this Court has refused to find

cause in nearly identical circumstances. See Riggins v.

Turner, 110 F .3d 64, 1997 WL 144214 at *2 (6th Cir.1997)

~ (unpublished). In Riggins, the petitioner was convicted of

rape, and his appeal was denied. Eight years later, he filed a

Rule 26(B) petition, which was denied as untimely. On

habeas review, he claimed that his counsel on direct appeal

was ineffective for, among other things, failing to argue that

his trial counsel was ineffective for not objecting to the

admission of certain evidence. He argued that appellate

counsel's ineffectiveness was cause for his failure to file a

timely Rule 26(B) petition. Citing Coleman, supra, the panel

rejected this argument. Although not binding, see United

States v. Skinner, 25 F.3d 1314, 1318 (1994), this recent

decision is strong persuasive authority,

Il. Prejudice

Even more disturbing is the majority's conclusion that

Paris was prejudiced by the Ohio courts’ refusal to grant his

Rule 26(B) petition. After a cursory analysis of Ohio hearsay

law, the majority holds that Keisha Walker's statements do

not fall under the excited utterance exception to the hearsay

rule, and therefore they should have been excluded. A wealth

of Ohio case law belies the majority's assertion,

First, the Supreme Court of Ohio has recognized that

trial courts have “a wide discretion ... to determine whether in

fact a declarant was at the time of an offered statement still

under the influence of an exciting event.” State v. Duncan,

53 Ohio St.2d 215, 219 (1978). If the trial court's resolution

of this factual question is reasonable, an appellate court

should not disturb it. State v. Wallace, 37 Ohio St.3d 87, 90

(1988).

9a

Ohio courts have also recognized a “clear judicial

trend to liberalize the requirements for an excited utterance

when applied to young children victimized by sexual

assaults.” State v. Wagner, 30 Ohio App.3d 261, 263 (1986).

This trend is based partly on the recognition that “children

are likely to remain in a state of nervous excitement longer

than would an adult.” State v. Taylor, 66 Ohio St.3d 295,

304 (1993). It also arises from “the recognition of [a child's]

limited reflective powers. Inability to fully reflect makes it

likely that the statements are trustworthy.” /d.

Although the statements of a child witness, not a

victim, are at issue here, the rationale behind the trend still

applies. Keisha Walker was undoubtedly traumatized by the

sight of her stepfather savagely beating her younger brother.

Paramedics testified that the boy ended up with bruises over

90% of his body, including his eyes, ears, and scrotum. The

trial court could have reasonably concluded that Keisha

remained in a “state of nervous excitement” thirteen hours

after witnessing this terrible abuse. See id. It also could have

reasonavly concluded that the four-year-old Keisha had

“limited reflective powers.” See id, see also State v. Wagner,

30 Ohio App.3d 261, 264 (1986) (“As a three-year-old, truly

in the age of innocence, [the victim] lacked. the motive or

reflective capacities to prevaricate the circumstances of the

attack”) Under these circumstances, Keisha's statements are

inherently trustworthy.

The majority improperly relies on the thirteen hour

gap between the beating and Keisha's initial statements. In

the child abuse context, Ohio courts have applied the excited

utterance exception to statements that were made long after

the related incident. See, e.g., Wallace, 37 Ohio St.3d at 90

(statements admitted despite gap of fifteen hours); Wagner,

30 Ohio App.3d at 261-62 (initial statements admitted

10a

despite gap of roughly twelve hours, second set of statements

admitted despite gap of six days); State v. Johnson, 1992 WL

205119 at *6 (Ohio App. 8 Dist.) (unpublished) (statements

admitted despite 24 hour gap).

Likewise, the fact that Keisha did not mention the

abuse until questioned by the paramedics is not dispositive.

Ohio courts have upheld the admission of elicited statements

as excited utterances. See, e.g., Wagner, 30 Ohio App.3d at

263-64; Wallace, 37 Ohio App.3d at 91-92; Johnson, 1992

WL 205119 at * 7. Moreover, Idaho v. Wright, 497 U.S.

805, 813 (1990), relied upon by the majority, is inapplicable.

The state need not show that hearsay statements “carry

sufficient particularized guarantees of trustworthiness” if they

“fall [ ] within a firmly rooted hearsay exception” /d. at 816.

Excited utterances are just such an exception.

The majority incorrectly concludes that the

paramedics’ initial questioning of Keisha “tainted any

exciting influence”, and therefore her later statements to the

hospital workers are inadmissible. Ohio courts have upheld

the admission of subsequent statements as excited utterances.

See, e¢.g., Wagner, 30 Ohio App.3d at 167 (upholding

admission of statements made to police detective five days

after initial statement to mother); Johnson, 1992 WL 205119

at *6 (upholding admission of statements made to detective

one day after prior questioning by same detective).

In holding that Keisha's statements are inadmissible,

the majority improperly substitutes its judgment for that of

the trial court. It also ignores Ohio's clear trend toward

admitting such statements. The trial court's resolution of this

evidentiary issue was not unreasonable, and therefore it

should be upheld on appeal. Even if it was unreasonable,

however, the record contains other evidence of Paris's guilt.

lla

As his lawyer acknowledged on direct appeal, Paris admitted

at trial that he struck Darius Walker. This fact alone

undermines Paris's claim of prejudice.

Finally, the majority overreaches in instructing the

State to afford Paris a new trial. Both Paris's petition and the

majority Opinion are premised on the assertion that he was

denied a meaningful first appeal. Given these circumstances,

a more appropriate remedy would be to require the state to

allow an out-of-time post-conviction appeal. [FN1] See Byrd

v. Smith, 407 F.2d 363, 366 (Sth Cir.1969). This approach

would allow the Ohio courts to decide issues of Ohio

evidentiary law. Moreover, it would provide Paris exactly

what he sought in his Rule 26 petitions. The majority's

usurpation of the available state processes ignores principles

of federalism and comity.

FN1. If the state fails to provide this opportunity

within a reasonable time, a new trial or unconditional release

would be appropriate. See id.

I dissent.

12a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 97-4129

DAVID PARIS,

Petitioner-Appellant,

Vv.

MELODY TURNER, Warden.

Respondent-Appellee.

Filed: August 19, 1999

Before: MERRITT, COLE, and FARRIS, [FN*] Circuit

Judges.

FN* The Honorable Jerome Farris, Circuit Judge of the

United States Court of Appeals for the Ninth Circuit, sitting

by designation.

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to the

original panel members but also to all other active judges of

this court, and no judge of this court having requested a vote

on the suggestion for rehearing en banc, the petition for

rehearing has been referred to the original panel.

13a

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the petition

were fully considered upon the original submission and

decision of the case. Accordingly, the petition is denied.

Judge Farris would grant rehearing for reasons stated in his

dissent.

ENTERED BY ORDER OF

THE COURT

s/ Leonard Green

LEONARD GREEN, CLERK

l4a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NOTICE: THIS IS AN UNPUBLISHED OPINION

No. 97-4129

DAVID PARIS,

Petitioner-Appellant,

Va

MELODY TURNER, Warden

Respondent-Appellee.

Argued: November 6, 1998

Decided and Filed: March 3, 1999

Vacated: May 26, 1999

Before: MERRITT, COLE, and FARRIS, [FN*] Circuit

Judges.

FN* The Honorable Jerome Farris, Circuit Judge of the

United States Court of Appeals for the Ninth Circuit, sitting

by designation.

R. GUY COLE, JR., Circuit Judge. David Paris

appeals the district court's dismissal of his habeas corpus

petition filed pursuant to 28 U.S.C. 2254, in which he

1Sa

challenges his 1991 conviction for felonious assault based on

his contention that he received ineffective assistance of

counsel on direct appeal. The district court dismissed the

petition on the grounds of procedural default, finding that

Paris failed to file his ineffective assistance claim within the

ninety-day deadline set forth by Ohio App. R. 26(B). For the

reasons that follow, we AFFIRM the judgment of the district

court.

On September 17, Darius Walker, a young boy, was

found by paramedics at his babysitter's apartment with

bruises over his body, having been struck with a belt.

flashlight and fists. Walker was taken to the hospital and

treated for his injuries. Law enforcement arrested David

Paris, Walker's stepfather, and charged him with felonious

assault in violation of O.R.C. 2903.11 and child

endangerment in violation of O.R.C. 2919.22. Paris was

convicted on June 21, 1991 of felonious assault and

sentenced to prison for a term of eight to fifteen years.

Paris appealed his conviction to the Ohio Court of

Appeals and, because he was indigent, received appointed

counsel. However, Paris's appointed counsel, Stephen

Schutte, filed a brief which contained a short five-paragraph

argument’ that failed to address what Paris contends were his

' The entire substantive part of the brief states the following:

Assignment of Error

The Court erred in charging the jury with an instruction for

felonious assault when the facts indicated an offense of simple

assault.

l6a

meritorious grounds for appeal: the district court's admission

of out-of-court statements of a four-year-old declarant

without conducting a voir dire hearing to determine

competence and other out-of-court statements that fell

outside the hearsay exception. On March 26, 1992, the Ohio

Court of Appeals denied Paris's appeal.

Schutte neglected to inform Paris of the outcome of

his direct appeal until four months had passed. Upon finally

learning of the outcome, Paris contacted the Ohio Public

Defender for legal assistance. However, because of the Public

Defender's large caseload and limited personnel, Paris was

placed on a waiting list for three years. During this time,

Paris did not appeal the Ohio Court of Appeal's decision to

the Ohio Supreme Court, nor did he file an ineffective

assistance of counsel claim.

Argument of Error

As noted in the Statement of Facts, the Court charged the jury

with both felonious assault and the lesser included offense of

assault. It is Appellant's contention that the charge should have

been one for the lesser included offense of assault.

The distinction between R.C. 2903.11 and 2903.13 is crucial

herein. R.C. 2903.11 states “(A) No person shall knowingly: (1)

cause serious physical harm to another.” R.C. 2903.13 states (sic)

(A) No person shall knowingly cause . . . physical harm to

another.”

The writer can find no distinction in Ohio law that distinguishes

between “physical harm” and “serious physical harm”. (sic). The

subject is treated at 87 ALR 2d 926.

17a

In August 1995, the Public Defender finally filed a

motion in the Ohio Court of Appeals to reopen Paris's case

alleging ineffective assistance of counsel. The Ohio Court of

Appeals denied the motion on October 23, 1995, based on

Ohio App. R. 26(B), which provides:

A defendant in a criminal case may apply for

reopening of the appeal from the judgment of

conviction and sentence, based on a claim of

ineffective assistance of 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

appellate judgment unless the application

shows good cause for filing at a later time.

(emphasis added). The court held that Paris failed to show

“good cause” for waiting to file his motion three years after

the Ohio Court of Appeals decision. Paris appealed the Ohio

Court of Appeals’ decision to the Ohio Supreme Court, which

affirmed the decision of the lower court. See State v. Paris,

76 Ohio St. 3d 270, 667 N.E.2d 390 (1996).

On October 21, 1996, Paris filed a petition for a writ

of habeas corpus in the United States District Court for the

Southern District of Ohio.2 The case was referred to a

magistrate judge, who issued a report and recommendation

Stating that Paris's petition should be dismissed without

reaching the merits because he had procedurally defaulted by

not abiding by the time limitations set forth in Ohio App.

Rule 26(B) and was unable to show cause and prejudice for

* Because Paris filed his petition after April 24, 1996, his petition

is subject to the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA).

18a

the default. Paris objected, but the district court adopted the

magistrate judge's initial and supplemental report and

recommendation and dismissed the petition based on

procedural default. Paris filed a timely notice of appeal.

II

Paris appeals the district court's dismissal of his

habeas corpus petition on the basis of procedural default.

When considering a district court's dismissal of a habeas

petition, we review the district court's legal findings de novo,

and its factual findings for clear error. See Cardinal v. United

States, 954 F.2d 359, 362 (6th Cir.1992).

This court examines four factors when deciding

whether a petitioner's state procedural default precludes

consideration of the merits of a habeas corpus petition: first,

whether the state has a procedural rule that is applicable to

the petitioner and with which the petitioner has failed to

comply; second, whether the state courts actually enforce the

state procedural rule; third, whether the state procedural rule

is an adequate and independent state ground that forecloses

review of a federal constitutional claim; and fourth, whether

the petitioner can show cause for failing to follow the rule

and that he was prejudiced as a result. See Maupin v. Smith,

785 F.2d 135, 138 (6th Cir. 1986). In order for a state rule to

serve as a procedural default, the court must answer the first

three inquiries in the affirmative, and the fourth in the

negative.

Paris concedes the first two factors of the Maupin

test,’ but bases his argument on the third and fourth factors.

* At oral argument, Paris argued for the first time that Rule 26(B)

was not firmly established and regularly followed at the time of

19a

He contends that courts have applied the “good cause”

requirement of Rule 26(B) inconsistently and, therefore, it is

not an adequate state procedural bar, citing to instances in

which courts have allowed delays well after the ninety-day

deadline. See State v. Nitenson, 1994 Ohio App. LEXIS 827,

No. 91 CA 796, 1994 WL 69894 (Ohio App. 4 Dist., Feb 24,

1994) (one year delay); State v. Wright, 1994 Ohio App.

LEXIS 3374, No. 93 CA 2110, 1994 WL 398805 (Ohio App.

4 Dist., July 29, 1994) (ten month delay). He also_argues that

Rule 26(B) does not provide any clear guidelines for

determining when a petitioner can file his petition beyond the

ninety-day filing period, citing for support Morales vy.

his June 21, 1991 conviction because it was not codified until July

1, 1993. If we were to consider this late argument, we would find

that it has no merit. While Paris is correct that prior to July 1,

1993, Rule 26 did not contain a distinct provision for ineffective

assistance of counsel claims, it did set forth a ten-day time limit

for the “application for reconsideration of any cause or motion

submitted on appeal.” Following the Ohio Supreme Court's

recommendation that the legislature adopt an amendment to better

serve defendants who allege ineffective assistance of counsel, see

State v. Murnahan, 63 Ohio St. 3d 60, 584 N.E.2d 1204 (1992),

Rule 26(B) was enacted to provide a ninety-day limit for

ineffective assistance of counsel claims.

Regardless of the time limitations set forth in Rule 26, Paris

waited three years after learning of his defeat on direct appeal

before filing his ineffective assistance of counsel claim in the Ohio

Court of Appeals. This delay cannot be attributed to Schutte, and

Paris offers no other explanation. Moreover, the Ohio Courts have

applied the ninety-day requirement of Rule 26(B) to convictions

older than Paris's. See State v. White, 1991 Ohio App. LEXIS 357,

1991 WL 8581 (Ohio App. 8 Dist., Jan. 31, 1991), aff'd, 72 Ohio

St. 3d 91, 647 N.E.2d 787 (1995); State v. Klein 1991 Ohio App.

LEXIS 1346, 1991 WL 41746 (Ohio App. 8 Dist., Mar. 28, 1991),

aff'd, 69 Ohio St. 3d 1481, 634 N.E.2d 1027 (1994).

20a

Calderon, 85 F.3d 1387, 1393 (9th Cir.) (striking down a

California statute for habeas corpus timeliness requirements

in part for vagueness), cert. denied, 519 U.S. 1001, 117 S. Ct.

500, 136 L. Ed. 2d 391 (1996).

We are unpersuaded by this argument because it

misrepresents the purpose and meaning of Rule 26(B)'s

“good cause” provision. By virtue of including this

provision, the state legislature intended that courts have the

discretion to consider ineffective assistance of counsel claims

after the ninety-day deadline, provided there is good cause.

The fact that some courts have considered a claim after the

ninety-day deadline is consistent with, not contradictory to,

the rule. Although “good cause” is subject to interpretation

by the courts, the language of Rule 26(B) is precise: a

defendant must file his application within ninety days or

show good cause for the delay. Unlike the California rule at

issue in Morales, the Ohio rule sets forth a petitioner's

obligation to file a claim within the ninety-day deadline and

the burden he must satisfy if he fails to meet that deadline.

Paris also contends that even if Rule 26(B) is an

adequate and independent state ground and thus constitutes a

procedural bar, he can establish cause and prejudice, the

fourth prong of the test. See Maupin, 785 F.2d at 138. Paris

argues that Schutte’s failure to communicate to Paris that he

had lost on direct appeal had the effect of “significantly

damaging his chances for an application for reopening from

the outset.” See, e.g., Boyd v. Cowan, 494 F.2d 338, 339 (6th

Cir. 1974) (stating that the attorney's duty to communicate

with his client fully and promptly is particularly compelling

when the client is incarcerated). In essence, Paris argues that

Schutte’ is responsible for the entire three-year delay that

transpired between his defeat on direct appeal and his filing

2la

of ineffective assistance of counsel pursuant to Rule 26(B),

when he was represented by the Ohio Public Defender.

We reject this argument. Although Paris had a

constitutional right to effective assistance of counsel on

direct appeal, see Evitts v. Lucey, 469 U.S. 387, 397, 83 L.

Ed. 2d 821, 105 S. Ct. 830 (1985), he had no such right to

counsel on discretionary matters such as a civil post-

conviction action, see Pennsylvania v. Finley, 481 U.S. 551,

555, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987), even if the

action involves alleged mistakes made on direct appeal.

Attorney error cannot constitute cause when the error resulted

in a petitioner's default in a proceeding in which he was not

constitutionally entitled to counsel. See Coleman vy.

Thompson, 501 U.S. 722, 751-53, 115 L. Ed. 2d 640, 111 S.

Ct. 2546 (1991); see also Riggins v. Turner, 110 F.3d 64.

1997 WL 144214, at *2 (6th Cir. 1997) (unpublished).

The district court acknowledged that Schutte was

responsible for the four-month delay informing Paris of the

verdict on direct appeal and that Paris would have satisfied

the “good cause” requirement if that were the only delay. We

agree with the district court. It is of no consequence in this

case, however, as we also agree with the district court that

Schutte is not responsible for the additional three-year delay.

Because Paris had no right to counsel on discretionary

appeal, he bore the burden of complying with the procedural

requirements of Rule 26(B). Paris sought and awaited

discretionary counsel at his own peril.

Accordingly, we AFFIRM the judgment of the district

court.

99

aed

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

No. C-3-96-409

DAVID PARIS,

, Petitioner

Vv.

MELODY TURNER, WARDEN,

Respondent.

Filed: August 22, 1997

DECISION AND ENTRY ADOPTING INITIAL (DOC.

#14) AND SUPPLEMENTAL (DOC. #18) REPORTS AND

RECOMMENDATIONS OF UNITED STATES

MAGISTRATE JUDGE; PETITIONER’S OBJECTIONS

TO SAID JUDICIAL FILING (DOC. #16 AND #19)

OVERRULED; PETITION FOR WRIT OF HABEAS

CORPUS DISMISSED AS PROCEDURALLY

DEFAULTED; JUDGMENT TO ENTER IN FAVOR OF

RESPONDENT AND AGAINST PETITIONER;

CAPTIONED CAUSE RECOMMITTED TO UNITED

STATES MAGISTRATE JUDGE FOR IN FORMA

PAUPERIS AND CERTIFICATE OF APPEALABILITY

ANALYSIS; TERMINATION ENTRY

23a

Based upon the reasoning and citations of authority

set forth by the United States Magistrate Judge in his initial

(Doc. #14) and Supplemental (Doc. #18) Reports and

Recommendations and the response by Respondent to

Petitioner's Objections to the initial Report and

Recommendations (Doc. #17), as well as upon a thorough de

novo review of this Court’s file and the applicable law, said

Reports and Recommendations are adopted in their entirety.

The Petitioner’s Objections to said judicial filings (Doc. #16

and #19) are overruled.

In ruling as aforesaid, this Court makes the following,

non-exclusive, observations:

3 Ohio R. App. P. 26(B)(1), requiring that a

motion for reopening an appeal must be filed within 90 days

of journalization of the judgment sought to be reopened, is an

“adequate and independent” state ground on which the state

can rely to foreclose review of a federal constitutional claim,

as that term is defined in Maupin v. Smith, 785 F.2d 135, 138

(6th Cir. 1986). Indeed, the aforementioned rule of appellate

procedure has been recognized as such by the Sixth Circuit

Court of Appeals in an appeal of a case from this court. —

Riggins v. Turner, No. 95-4027 (6th Circuit Court of

Appeals, March 27, 1997, unreported). The state’s interest in

finality of judgments warrants no other conclusion.

y Of course, the 90 day procedural bar is applied

in seemingly inconsistent fashion. Any procedural time limit,

coupled with a good cause exception thereto, must, by

definition, be dependent upon the unique set of facts and

circumstances in that given case. It is, accordingly, hardly

surprising that a delay of a given period of time (say, for

example, 36 months) will prove to be, under one set of

circumstances, cause to have delayed for that period of time,

24a

while, under a different set of circumstances, will be found to

bar the defendant’s request to reopen his appeal.

3. In this case, cause has simply not been

demonstrated by this Petitioner. It absolutely defies belief

that the appellate court would have denied a Petitioner’s

motion to reopen his appeal, even though said motion were

filed beyond the 90 day period of time, should Petitioner have

made timely motion, as soon as he discovered that his initial

appeal had been denied, and, moreover, was able to represent

that he had not been alerted by his opposing counsel of said

denial. If not being alerted by one’s appellate counsel until

more than 90 days after the appeal has been denied is not

good cause for a Petitioner to fail to follow the procedural

rule, then good cause can never been shown. The failure of

Petitioner to show cause in this case was not the additional

30 day period between the expiration of the 90 days and his

discovering that his appeal had been denied; rather, the

failure to show cause is bottomed upon the almost three year

delay after the Petitioner had acquired such knowledge. The

Ohio Supreme Court, in State of Ohio v. White, 72 Ohio St.

3d 91, 647 N.E.2d 787 (1995), clearly set forth that a delay

occasioned by the heavy workload of counsel does not

constitute good cause for a delay in filing of a motion to

reopen. .

WHEREFORE, based upon the aforesaid, this Court,

having adopted the initial (Doc. #14) and Supplemental (Doc.

#18) Reports and Recommendations of the United States

Magistrate Judge and having overruled the Petitioner’s

Objections thereto (Doc. #16 and #19), orders the Petition for

Writ of Habeas Corpus dismissed as procedurally defaulted.

Judgment will be entered in favor of the Respondent and

against Petitioner herein.

25a

The captioned cause is recommitted to the United

States Magistrate Judge for a Report and Recommendations

on whether the Petitioner should be allowed to appeal in

forma pauperis and whether a Certificate of Appealability

should be issued by this trial court.

The captioned cause is hereby ordered terminated

upon the docket records of the United States District Court

for the Southern District of Ohio, Western Division, at

Dayton.

August 22, 1997 s/Walter Herbert Rice

WALTER HERBERT RICE,

CHIEF JUDGE

UNITED STATES DISTRICT

COURT

Copies to:

Angela Wilson Miller, Esq.

Lillian B. Earl, Esq.

Magistrate Judge Michael R. Merz

26a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

Case No. C-3-96-409

DAVID PARIS,

Petitioner

¥.

MELODY TURNER, WARDEN,

Respondent.

Filed: April 17, 1997

REPORT AND RECOMMENDATIONS

This is a habeas corpus case pursuant to 28 U.S.C. §

2254. Petitioner David Paris is represented by Assistant

State Public Defender Angela Miller and raises one ground

for relief: denial of effective assistance of appellate counsel

in violation of the Sixth and Fourteenth Amendments to the

United States Constitution (petition, Doc. #1, at 5).

Respondent has filed a Return of Writ (Doc. #8) and

Petitioner has, with Court permission, filed a Traverse (Doc.

#11).

27a

STATE COURT PROCEEDINGS

Mr. Paris was indicted by the Clark County Grand

Jury for one count of felonious assault (Return of Writ, Doc.,

#8, Ex. A). After trial and conviction by a jury, he was

sentenced to 8 to 15 years imprisonment (Id., Ex. B).

Represented on appeal by Springfield attorney Stephen

Schutte, he filed one assignment of error: “The Court erred in

charging the jury with an instruction for felonious assault

when the facts indicated an offense of simple assault.” (Id.,

Ex. C). The Céiut of Appeals found that the victim was a

two-year old boy who had been beaten with a belt, a

flashlight, and the Defendant’s fists, evidence obviously

sufficient to permit a conviction for felonious assault if the

jury believed it (Id. at E).

The Court of Appeals affirmed the conviction March

26, 1992, but Mr. Parks [sic] did not learn that fact until July,

1992, when he wrote the State Public Defender for

assistance. The sole method in Ohio for challenging

ineffective assistance of appellate counsel is by motion to

reopen the appeal under Ohio R. App. P. 26(B), and the

State Public Defender filed such a motion on Mr. Paris’s

behalf in August, 1995 (Return of Writ, Doc. #8, Ex. F). The

Court of Appeals denied the motion October 23, 1995 (Id.,

Ex. I). The Ohio Supreme Court “affirm[ed] the judgment of

the court of appeals for the reasons stated in its decision. See

State v. White (1995), 72 Ohio St. 3d 91, 647 N.E. 2d 787.”

State v. Paris, 76 Ohio St. 3d 270, 667 N.E. 2d 390 (1996).

Mr. Paris’s Petition to this Court followed in October, 1996.

28a

ANALYSIS

While a federal habeas petitioner is required to

exhaust available state court remedies before filing his

petition, Respondent concedes Mr. Paris has exhausted those

remedies. However, Respondent asserts that merit

consideration of Petitioner’s claim is barred by his procedural

default in presenting it to the Ohio courts.

A petitioner may not raise on federal habeas a federal

constitutional right he could not raise on appeal in state court

because of procedural default. Wainwright v. Sykes, 433 U.S.

72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); Engle v. Isaac,

456 U.S. 107 (1982). If, because of a procedural default, a

habeas corpus petitioner can no longer present one or more of

his claims to the state courts, he has waived those claims for

purposes of federal habeas corpus review unless he can

demonstrate cause for the procedural default and actual

prejudice resulting from the alleged constitutional error.

Murray v. Carrier, 477 U.s. 478, 485 (1986); Engle v. Isaac,

456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72,

87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). Wainwright

replaced the “deliberate bypass” standard of Fay v. Noia, 372

U.S. 391, 82 S. Ct. 822, 9 L. Ed. 2d 837 (1963).

The Sixth Circuit Court of appeals requires a four-

part analysis when the State alleges a habeas claim is

precluded by procedural default. Maupin v. Smith, 785 F. 2d

135, 138 (1986).

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 sanetion: |

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.

Once the court determines that a state

procedural rule was not complied with and

that the rule was an adequate and

independent state ground, then the petitioner

must demonstrate under Sykes that there was

“cause” for him to not follow the procedural

rule and that he was actually prejudiced by

the alleged constitutional error, /d.

| Ohio plainly has a procedural rule which applies to

making ineffective assistance of appellate counsel claims:

they must be filed within ninety days of judgment in the court

of appeals unless good cause is shown for filing later. Ohio

R. App. P. 26(B). The Ohio Supreme Court has held that an

attorney’s heavy workload which prevents the filing does not

constitute good cause under Rule 26(B). State vy. White, 72

Ohio St. 3d 91, 647 N.E. 2d 787 (1995),

The second prong of Maupin ‘requires that the

procedural rule actually have been enforced against the

petitioner. In this case the Court of Appeals expressly found

that the claimed cause for delay — petitioner’s counsel’s

heavy work load — was not good cause, relying on White.

| 30a

(Court of Appeals Opinion, attached as Ex. I to Return of

Writ, Doc. #8). The Ohio Supreme Court affirmed, itself

expressly citing White. Paris, 76 Ohio St. 3d at 270. Thus a

state procedural default was plainly enforced in this case

against Mr. Paris.

The Ohio timely filing rule is plainly independent of

federal grounds and is the kind of state procedural rule

regularly held to be adequate; the States have an important

interest in timely adjudication of claims. Daniels v. Allen,

344 U.S. 443 73 S. Ct. 397, 97 L. Ed. 469 (1953).

The question then becomes whether Mr. Paris can

show cause and prejudice which will excuse his procedural

default.

At one level Mr. Paris seems to argue that his cause

for not filing the motion to reopen on time is that his

attorney, Mr. Schutte, never told him that his conviction had

been affirmed. Since that was clearly part of Mr. Schutte’s

duty to Mr. Paris and the failure happened in a proceeding in

which Mr. Paris was entitled to appointed counsel, it would

constitute cause if it were the sole reason for delay.

However, Mr. Paris’s motion papers in both this Court and

the Ohio Court of Appeals make it clear he learned his

conviction had been affirmed about 120 days after it

happened, or 30 days outside the 90-day safe harbor in Ohio

App. R. 26(B). However, the delay from then (July, 1992)

until he actually filed the Motion for Reopening (August,

1995) was entirely caused by the heavy work load of the State

Public Defender. It is this three-year delay which both the

Ohio Court of Appeals and the Ohio Supreme Court held

against Mr. Paris, not the thirty days during which he had not

learned of the affirmance.

3la

Attorney error cannot constitute cause where the error

caused a petitioner to default in a proceeding in which he was

not constitutionally entitled to counsel, e.g., a discretionary

appeal or state post-conviction proceeding. Coleman vy.

Thompson, 501 U.S. 722, 111 S. St. 2546, 115 L. Ed. 2d 640

(1991). Ineffective assistance of counsel on appeal cannot

constitute cause for failure to file a timely application for

reopening of the direct appeal under Ohio App. R. 26(B)

since a person is not entitled to counsel for the reopening.

Riggins v. Turner, Case No. 95-4027 (6th Cir. 1997).

In sum, Mr. Paris procedurally defaulted on his claims

by delaying the filing of his Motion for Reopening more than

three years. The Ohio courts enforced that default against

him and he has been unable to demonstrate cause and

prejudice. His Petition should be dismissed without reaching

the merits.

April 17, 1997 s/Michael R. Merz

Michael R. Merz,

UNITED STATES

MAGISTRATE JUDGE

' Were the Court to reach the merits, it would certainly find that

Mr. Schutte’s grossly deficient performance meets the first prong

of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984); I offer no opinion on whether Mr. Paris was

prejudiced thereby.

32a

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

No. C-3-96-409

DAVID PARIS,

Petitioner,

Vv.

MELODY TURNER, WARDEN,

Respondent.

Filed: June 4, 1997

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on

Petitioner’s Objections (Doc. #16) to my Report and

Recommendations (Doc. #14) recommending the Petition be

denied because of the sole claim — ineffective assistance of

appellate counsel — had been procedurally defaulted in the

state court system. By General Order, the District Judges at —

Dayton have permitted me to reconsider matters sua sponte

when objections are filed.

Petitioner raises two objections, but the second argues

the merits of the ineffective assistance of counsel claim and

is not discussed here because I continue to conclude this

Court is barred from reaching the merits.

33a

Petitioner’s first objection has two parts: (1) that I

erred in finding that the state appellate court’s reason for not

reopening Mr. Paris’s appeal was an adequate and

independent state ground for that court’s decision and (2) that

l erred in analyzing Mr. Paris’s cause and prejudice analysis.

ADEQUATE AND INDEPENDENT STATE GROUND

The relevant chronology, with which Petitioner does

not quarrel, is set out in the original Report:

The Court of Appeals affirmed the

conviction March 26, 1992, but Mr. Paris

did not learn that fact until July, 1992, when

he wrote the State Public Defender for

assistance. The sole method in Ohio for

challenging ineffective assistance of

appellate counsel is by motion to reopen the

appeal under Ohio R. App. P. 26(B), and

the State Public Defender filed such a

motion on Mr. Paris’s behalf in August,

1995 (Return of Writ, Doc. #8, Ex. F). The

Court of Appeals denied the motion October

23, 1995 (Id., Ex. I). The Ohio Supreme

Court “affirm[ed] the judgment of the court

of appeals for the reasons stated in its

decision. See State v. White (1995), 72 Ohio

St. 3d 91, 647 N.E. 2d 787.” State v. Paris,

76 Ohio St. 3d 270, 667 N.E. 2d 390 (1996).

Mr. Paris’s Petition to this Court followed in

October, 1996.

(Report and Recommendations, Doc. #14, at 2.)

34a

Having found these facts, the original Report then

- applied the four-part procedural default analysis of Maupin v.

Smith, 785 F. 2d 135, 138 (6" Cir., 1986). Petitioner

likewise does not quarrel with the first two steps in my

analysis:

1) Ohio has a procedural rule, embodied in Ohio R. App. P.

26(B), that a claim of ineffective assistance of appellate

counsel must be raised by a motion to reopen the appeal, filed

not later than 90 days after judgment on appeal , unless good

cause be shown.

2) Ohio enforced this rule against Mr. Paris, denying his

motion to reopen because it had been filed about 3% years

after his conviction was final on appeal. His asserted good

cause for delay — the very heavy workload and consequent

backlog of the State Public Defender’s Office — was found

not to be good cause by the Second District Court of Appeals,

which found itself bound by Ohio Supreme Court precedent

directly in point, State v. White, 72 Ohio St. 3d 91 (1995).

The third stage of the Maupin analysis is to determine

if the state procedural rule is adequate and independent:

independence is a question of state law, but adequacy is a

question of federal law. Liegakos v. Cooke, 106 F. ed. 1381,

1385 (7" Cir. 1997). Mr. Paris concedes the Ohio rule in

question is independent, but denies its adequacy. In doing so

he relies heavily on Carpenter v. Mohr, Case No. C-2-96-117

(S.D. Ohio 1997) (Kinneary, J.) (unpublished, copy attached

to Doc. #16).

35a

In Carpenter, Judge Kinneary found that the state ruie

limiting reopening to 90 days in the absence of good cause

was not an adequate state ground because it was not “firmly

established and regularly followed” by the state courts, citing

Ford v. Georgia, 498 U.S. 411, 423 (1991), quoting James v.

Kentucky, 466 U.S. 341 (1984).

As evidence that the rule in question is not firmly

established and regularly followed, Carpenter cites three

State appellate decisions: State v. Owens, 1996 WL 146097

(Ohio App. Dist. 7; March 29, 1996); State v. Holland, 1994

WL 142735 (Ohio App. Dist. 10; April 21, 1994): and State

v. Nitenson, 1994 WL 69894 (Ohio App. Dist. 4; February

24, 1994).

Judge Kinneary cites Owens for the proposition that

some Ohio appellate courts have a standard under which

‘good cause will almost never be found. Carpenter at 11.

However, the court in Owens actually said that the appellant

had offered no reason at all for his eight-year delay in filing.

Judge Kinneary cited Holland as an example of courts which

avoid the good cause issue and proceed directly to the merits.

Carpenter at 11. However in Holland the Court of Appeals

for Franklin County actually decided that the motion to

reopen was both untimely and without merit. Finally, Judge

Kinneary cited Nitenson as demonstrating some courts will

almost always find good cause. Carpenter at 11. The

appellate court there found good cause based on the pro se

status of the appellant.

With all due respect to Judge Kinneary, I believe

Carpenter was decided incorrectly. The opinion focuses on

three unreported appellate decisions which do not have

i i a

36a

controlling precedental weight in Ohio case law.’ In contrast,

there are numerous published opinions of the Ohio Supreme

Court upholding the 90-day limit with the good cause

exception. The following cases had been decided as of the

time of the Superseding Report and Recommendations in

Riggins v. Turner, C-3-94-359:

In State v. Reddick, 72 Ohio St. 3d 88, 647

N.E. 2d 784 (1995), the Supreme Court

considered arguments similar to those made

here by Mr. Riggins. Reddick’s conviction

was final May 7, 1987; his application to

reopen was not filed until August 31, 1993.

The court held that the new App. Rule 26

applied to him with its express requirement

of a showing of good cause for late filing.

But it also held that a good cause

requirement had existed at least since

Murnahan and arguably before.

We hold, therefore, that the good-

cause requirement of App. R. 26(B)

succeeds and incorporates the good-

cause requirement of Murnahan and

former App. R. 14(B). Accordingly,

an applicant who seeks to reopen an

appellate judgment journalized ——

before July 1, 1993 may not simply

rely on the fact that App. R. 26(B)

did not exist within ninety days

following journalization of the

appellate judgment, but must show

' See Rule 2(G)(1) and (2), Ohio Supreme Court Rules of the

Reporting of Opinions.

CE ee got StS St gen oe eee eee

ee ee en ee eee ee

of, te PS ee) eee ne 8 Ve Oe ete Se

c ; ew

37a

good cause why he or she did not

attempt to invoke the procedures

available under former App. R. 26

and 14(B). Neither Murnahan nor

App. R. 26(B) was intended as an

open invitation for persons sentenced

to long periods of incarceration to

concoct new theories of ineffective

assistance of appellate counsel in

———order—to havea new round of

appeals. Rather, both were intended

to allow the belated presentation of

colorable claims that

defendants/appellants were

prevented from presenting timely by

particular circumstances. Lack of

effort or imagination, and ignorance

of the law, are not — such

circumstances and do not

automatically establish good cause

for failure to seek timely relief.

647 N.E. 2d at 786.

The Ohio Supreme Court has consistently

followed Reddick in the cases that followed.

e In State v. Franklin, 72 Ohio St. 3d 372

(1995), the defendant waited for five years

from affirmance of his conviction to file an

application for reopening on_ ineffective

assistance grounds. The court of appeals

(sic) found no good cause of the delay. The

Ohio Supreme Court affirmed, expressly

38a

holding that ignorance of the law was not a

sufficient justification for untimely filing.

In State v. Tucker, 73 Ohio St. 3d 152

(1995), defendant waited four years to apply

for reopening, the court of appeals found no

good cause, and the Supreme Court

affirmed.

In State v. Peeples, 73 Ohio St. 3d 152

(1995), the court found no good cause for

seven years delay before moving to reopen

and reiterated that applications under both

App.R. 26A) and (B) require a showing of

good cause for delay, citing Reddick.

In State v. Houston, 73 Ohio St. 3d 346

(1995), the court found no good cause for

delay of a year in filing to reopen.

In State v. Cooey, 73 Ohio St. 3d 411

(1995), the court found no good cause for

delay when the application to reopen was

filed almost seven years after affirmance of

the conviction and over one year after

amended App.R. 26(B) became effective.

In State v. Winstead, 74 Ohio St. 3d 277

(1995), the conviction was affirmed on

September 28, 1994, and the application for

reopening was filed one day late (i.e. on the

91™ day) because the chosen courier service

had failed to make timely delivery. The

Hamilton County Court of Appeals held that

did not constitute good cause and the

Supreme Court affirmed per curiam.

e In State v. Charlton, 74 Ohio St. 3d 231

(1996), the conviction was affirmed in 1992

and the application to reopen was not filed

39a

until 1994. Both appellate courts found no

good cause.

eIn State v. Harris, 74 Ohio St. 3d 233

(1996), the defendant waited eleven years

and was found not to have shown good

cause.

e In State v. Oden, 74 Ohio St. 3d 234 (1996),

the wait was five years and the result was

the same.

e In State v. Way, 74 Ohio St. 3d 236 (1996),

defendant waited five years and received the

same ruling.

ein State v. Witlicki, 74 Ohio St. 3d 237

(1996), the appellant waited twelve years

and was found not to have shown good

catise for the delay.

eIn State v. Wickline, 74 Ohio St. 3d 369

(1996), the defendant waited almost six

years and was found not have shown good

cause.

e In State v. Bell, 73 Ohio St. 3d 32 (1995),

appellant failed to show good cause for a

delay of three and one-half years.

e In State v. Otis, 73 Ohio St. 3d 39 (1995), a

delay of two years was found unexcused.

(Id., February 29, 1996).2 The recommended holding in

Riggins that Ohio App. R. 26(B) constituted an adequate and

independent state ground was adopted by this Court and has

now been affirmed by the Sixth Circuit on appeal

* Numerous additional Supreme Court decisions to the same effect

have been reported since then.

aa i i

40a

(Information copy attached [now available at 1997 WL

144214])°

Judge Kinneary indicates in Carpenter that he has not

been able to find one Ohio Supreme Court finding good

cause in the face of an appellate court decision finding no

good cause. Again, with all due respect to a senior judicial

officer, I believe this proves Rule 26 is “firmly established”

and is being “regularly followed.” He cites to State v. White,

72 Ohio St. 3d 91, 647 N.E. 2d 787 (1995), in which Justice

Wright dissented from the holding of the court that a severe

backlog in the State Public Defender’s Office did not

constitute good cause. Of course the Court of Appeals relied

in White in Mr. Paris’s case and the Ohio Supreme Court

affirmed on the basis of the appellate opinion. The Ohio law

is the majority decision in White, not Justice Wright’s

dissent. Apparently before his retirement from the court,

Justice Wright was persuaded by his colleagues, because he

did not dissent from the holding in State v. Williams, 74 Ohio

St. 3d 454, 659 N.E. 2d 1253 (1996), that a backlog in the

public defender’s office was not good cause for delay.

The interests of comity and federalism which underlie

the adequate and independent state ground rule strongly

support upholding App. R. 26(B) here. Unquestionably, the |

States have an interest in finality of criminal convictions.

They are under no constitutional obligation at all to provide

for collateral attack on convictions. When they do so, as

‘ Carpenter has no stare decisis effect on our decision of this case

because Riggins was decided before Carpenter. Indeed, Judge

Kinneary, under state decisis theory, should have followed

Riggins. The problem with unreported decisions is that Judge

Kinneary had no more way of learning about Riggins than I did of

learning about Carpenter when the initial Report was written.

4la

Ohio has done with App. R. 26(B), they are free to set

absolute bright-line limits on the process. See Daniels v.

Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469

(1953)(meritorious argument in a capital case rejected

because filed one day late; bright-line rule upheld as adequate

and independent). Here, Ohio has adopted a clear rule but

allowed a good cause exception . The reason which might

constitute good cause would understandably vary and get

picked out, in the usual common law way, over a period of

time. This is not unlike the process which the federal courts

have used and are using to define, over a range of Cases,

“excusable neglect” as it occurs in Fed. R. Civ. P. 6 and other

places. In other words, choosing a bright-line rule and

allowing judges to consider exceptions was a perfectly

reasonable way to structure state consideration of ineffective

assistance of appellate counsel claims. To invalidate the rule

as Carpenter does, is to require Ohio’s Courts of Appeals to

hear claims of ineffective assistance of counsel whenever

they are made and regardless of the reasons for delay. |

recommend this Court adhere to its decision in Riggins that

App. R. 26(B) is an adequate and independent state

procedural rule.

CAUSE AND PREJUDICE

In the second part of his first objection, Mr. Paris

argues I misanalyzed his cause and prejudice claim

(Objections, Doc. #16, at 6-8).

At the fourth stage of the Maupin analysis, habeas petitioner

can excuse his state procedural default and prejudice

resulting from it. Murray v. Carrier, 477 U.S. 478, 485

(1986); Engle v. Isaac, 456 U.S. 107, 102 S. Ct. 1558, 7]

L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 87,

42a

97 S. Ct. 2497, 53 L.Ed. 2d 594 (1977). In my initial Report,

I analyzed this matter as follows:

At one level Mr. Paris seems to argue that

his cause for not filing the motion to reopen

on time is that his attorney, Mr. Schutte,

never told him that his conviction had been

affirmed. Since that was clearly part of Mr.

Schutte’s duty to Mr. Paris and the failure

happened in a proceeding in which Mr. Paris

was entitled to appointed counsel, it would

constitute cause if it were the sole reason for

delay. However, Mr. Paris’s motion papers

in both this Court and the Ohio Court of

Appeals make it clear he learned his

conviction had been affirmed about 120 days

after it happened, or 30 days outside the 90-

day safe harbor in Ohio App. R. 26(B).

However, the delay from then (July, 1992)

until he actually filed the Motion for

Reopening (August, 1995) was entirely

caused by the heavy work load of the State

Public Defender. It is this three-year delay

which both the Ohio Court of Appeals and

the Ohio Supreme Court held against Mr.

Paris, not the thirty days during which he

had not learned of the affirmance.

Attorney error cannot constitute cause where

the error caused a petitioner to default in a

proceeding in which he was_ not

constitutionally entitled to counsel, e.g., a

discretionary appeal or state post-conviction

proceeding. Coleman v. Thompson, 501

U.S. 722, 111 S. Ct. 2546, 115 L.Ed. 2d 640

43a

(1991). Ineffective assistance of counsel on

appeal cannot constitute cause for failure to

file a timely application for reopening of the

direct appeal under Ohio App. R. 26(B)

since a person is not entitled to counsel for

the reopening. Riggins v. Turner, Case No.

95-4027 (6" Cir. 1997).

(Report and Recommendations, Doc. #14 at 4-5). I do not

believe any additional analysis is necessary.

CONCLUSION

For the foregoing reasons, I again recommend that the

Petition be dismissed on the merits as procedurally defaulted.

June 3, 1997. s/Michael R. Merz

Michael R. Merz

UNITED STATES

MAGISTRATE JUDGE

44a

APPENDIX G

IN THE SUPREME COURT OF OHIO

No. 95-2425

THE STATE OF OHIO,

Appellee,

V.

DAVID PARIS,

Appellant.

Submitted: June 25, 1996

Decided: August 7, 1996

In June 1991, appellant, David Paris, was convicted

of felonious assault and sentenced to prison. In March 1992,

the court of appeals affirmed the conviction and sentence.

State v. Paris (Mar. 26, 1992), Clark App. No. 2836,

unreported, 1992 WL 63387.

It is undisputed that Paris filed an application in

August 1995 with the court of appeals to reopen his appeal

under App.R. 26(B), alleging ineffective assistance of

appellate counsel. In October 1995, the court of appeals

denied appellant’s motion to reopen because Paris failed to

file his application within ninety days of the journalization of

the appellate judgment, as required by App.R. 26(B).

Further, the court found that Paris “has failed to show good

45a

cause for his delay in filing his application to reopen his

appeal.”

Appellant appeals the denial to this court.

APPEAL from the Court of Appeals for Clark

County, No. 2836.

Stephen A. Schumaker, Clark County Prosecuting

Attorney, and Douglas M. Rastatter, Assistant Prosecuting

Attorney, for appellee.

David H. Bodiker, Ohio Public Defender, David

Klaus and Angela Wilson Miller, Assistant Public Defenders,

for appellant.

PER CURIAM.

We affirm the judgment of the court of appeals for the

reasons stated in its decision. See State v. White (1995), 72

Ohio St.3d 91, 647 N.E.2d 787.

Judgment affirmed.

MOYER, C.J., and DOUGLAS, RESNICK, FRANCIS E.

SWEENEY, Sr., PFEIFER, COOK and STRATTON, JJ.,

concur.

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APPENDIX H

IN THE COURT OF APPEALS FOR

CLARK COUNTY, OHIO

C.A. No.: 2836

T.C. No. 90-CR-303

STATE OF OHIO,

Plaintiff-Appeliee,

v

DAVID PARIS,

Defendant-Appellant.

Filed: October 23, 1995

DECISION AND ENTRY

PER CURIAM:

David Paris has moved to reopen his appeal pursuant

to App.R. 26(B). Paris alleges that the attorney who

reptesented him during his direct appeal rendered ineffective

assistance by failing to challenge the trial court’s admission

of certain out of court statements by a child declarant under

the ‘excited utterance” exception to the rule against hearsay

evidence.

47a

David Paris was convicted of Felonious Assault

following a jury trial in June 1991. Paris was sentenced to a

term of eight to fifteen years imprisonment.

David Paris timely appealed to this court, arguing

error in the jury instruction given by the trial court. We

found no merit in the claimed error and affirmed Paris’

conviction and sentence. State v. Paris (March 26, 1992),

Clark App.No. 2836, unreported.

On August 22, 1995, three years after Paris’

conviction was affirmed by this court, David Paris filed this

application seeking to reopen his appeal.

David Paris did not file this application to reopen his

appeal within ninety days after the journalization of this

court’s judgment, as App.R. 26(B) requires. Accordingly,

this application must be denied as untimely unless Paris

demonstrates good cause for the late filing. State v. Reddick

(1995), 72 Ohio St.3d 88. State v. Dever (1995), 73 Ohio

St.3d 722.

Paris has submitted affidavits from both himself and

the Assistant State Public Defender who represents him.

They state that prior appellate counsel failed to inform Paris

of this court’s decision affirming his conviction, that Paris

discovered our decision on his appeal when he contacted this

court in July 1992, and that Paris subsequently requested

assistance from the State Public Defender’s Office in July

1992. The affidavits further state that, due to the caseloads in

the office of the Ohio Public Defender, Paris was placed on a

waiting list and that almost three years passed before an

attorney from that office was assigned in March 1995 to

review Paris’ case, and that during this three year period Paris

48a

contacted the State Public Defender’s Office over fifty times

requesting legal assistance with his case.

The reasons on which Paris relies have been rejected

by the Ohio Supreme Court as a basis from which the good

cause showing required by App.R. 26(B) may be found.

State v. White (1995), 72 Ohio St.3d 91. This court is bound

to follow that statement of policy by the Supreme Court.

David Paris has failed to show good cause for his

delay in filing his application to reopen his appeal. The

application to reopen his appeal is denied.

SO ORDERED.

s/James A. Brogan

JAMES A. BROGAN,

PRESIDING JUDGE

s/Mike Fain

MIKE FAIN, JUDGE

s/Thomas J. Grady

THOMAS J. GRADY, JUDGE