# Appendix — Mack v. Paris

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0869%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 1104

## Text

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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,
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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NOTICE: THIS IS AN UNPUBLISHED OPINION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

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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.

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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.

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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

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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

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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0869%3A2. Public record. Not legal advice.