Opposition Brief — Harrison v. Kainrad

“Triad

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No. 00-1179 OFFICE OF THE CLERK

In The

Supreme Court of the United States

e

CHRISTOPHER G. HARRISON,

Petitioner,

HON. JOSEPH R. KAINRAD, JUDGE,

Respondent.

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On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

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BRIEF IN OPPOSITION

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DENISE SMITH

Counsel of Record

Victor V. ViGLuicci

Ketur K. NorMAN

PortAGE County PRosECUTOR’S OFFICE

466 South Chestnut Street

Ravenna, Ohio 44266

(330) 297-3850

Attorneys for Respondent

Hon. Joseph R. Kainrad, Judge.

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Respondent restates the Question Presented as

follows:

1.

Whether the denial of an authorization by the Court

of Appeals to file a second or successive application

for a writ of habeas corpus is appealable or can be the

subject of a petition for a writ of certiorari pursuant

to 28 U.S.C. §2244(b)(3)(E)?

Whether a second federal habeas corpus action by the

same applicant is a second or successive petition

where the district court decided the first application

on the merits as well as on procedure?

li

PARTIES TO THE PROCEEDING

Petitioner

Christopher G. Harrison is an individual and has no

corporate affiliations.

Respondent

The Honorable Joseph R. Kainrad., ludge, Portage County,

Ohio Court of Common Pleas.

TABLE OF CONTENTS

Page

GUBSTION PRESENTED. ......cccscsccccccaccccsnes i

PARTIES TO THE PROCEEDING ..............+.:: ii

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OPINIONS BELOW.......... pEeaeeh eas Carns eavnae 1

i, PEE rer rr eT Terre Teen rT 2

STATUTORY PROVISIONS INVOLVED............. 2

DUT memes OR Thee CAG i. icc cece cee cecs 3

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I. The decision to allow or disallow a second

habeas corpus application is not appealable... 6

II. The application at issue is clearly a second

habeas corpus application...................-. 7

Ill. Harrison’s second application was filed outside

the one-year statute of limitations............. 11

A. Herrington is not a Supreme Court case for

purposes of 28 U.S.C. §2244(d)(1)(C)...... 12

B. The time for direct review expired on June

11, 1998 for purposes of 28 U.S.C.

IND 665i ik 0 kbs Kena ddaktinn tyes 13

C. Harrison’s state petition for a writ of habeas

corpus was not a “properly filed applica-

tion” for purposes of tolling the statute of

limitations pursuant to 28 U.S.C.

EE oe Cie shes dyaes sheen seks ous 13

D. Harrison failed to raise his federal constitu-

tional claims in his state direct appeal.... 14

he PEE eee ELEY LET ERE CLC LET EE EEE 16

iv

TABLE OF AUTHORITIES

Page

CAsEs:

Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed.

FOR CRUE vw nk vk c6dabbwE Ge caNeey can ek eee sav aneees 14

Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135

Soe GP SEs ocnb 500s ds ciweduripreuckauiade 6

Ford v. Wainright, 477 U.S. 399, 106 S.Ct. 2595, 91

Spee ME RG Sons once basabeawaes eds dedensees 9

Herrington v. Edwards, 6th Cir. App. Unreported

Case No. 97-3542 (1/99).............. 8, 9, 10, 12, 16

Hohn v. United States, 524 U.S. 236, 118 S.Ct. 1969,

Ds San Be Oi xb bobo o45s taaakeokin ees 6

In re Sims, 111 F.3d 45 (6th Cir. 1997)................ 5

Rashid v. Kuhlman, 991 F.Supp. 254 (S.D.N.Y. 1998) .... 14

Rust v. Zent, 17 F.3d 155 (6th Cir. 1994).......... 14, 15

State v. Szefcyk, 77 Ohio St.3d 93 (1996)............. 15

Stewart v. Martinez-Villareal, 523 U.S. 637, 118 S.Ct.

IG08, 360 LBZ OOP CLOG vnc oc caccsdgknkesss 8, 10

STATUTES:

2B CEA as oan ess 8h SS is 2, 6

ee Sons Ds 5b bod 6h wks ooo ee eh eee 7,8

Be Wr TS oho os Se eackcs b aeebie tos hon aeeai 7

28 US.C. S2200(b SMA) and (C) «oo ons cies ciicviccccese 8

ee As vis 3 hw sks £9 oS ca ae ces 4, 31, 73

28 U.S.C. §2244(d)(1)(C). .... 2... eee ceecescececceees 12

ah USA. GERAD 6.ks dob kh evade endeei 13, 14

6 USC. SOME 6... so ee Se 13

OPINIONS BELOW

The Petition has several lower court opinions

attached to it. These are:

(A) October 26, 2000 Order from the United States Court

of Appeals for the Sixth Circuit denying Petitioner

Christopher Harrison’s motion for an order allow-

ing him to file a second or successive habeas corpus

application.

(B) February 29, 2000 Order from the United States

District Court for the Northern District of Ohio

granting Respondent Judge Joseph Kainrad’s

motion to transfer Harrison’s application to the

Sixth Circuit.

(C) February 8, 2000 Report and Recommendation of

Magistrate Judge, recommending transfer of Har-

rison’s application to the Sixth Circuit.

(D) May 19, 1997 Judgment of United States District

Court for the Northern District of Ohio adopting

April 11, 1997 Report and Recommendation of Mag-

istrate Judge. (See (E) below)

(E) April 11, 1997 Report and Recommendation of Mag-

istrate Judge dismissing Harrison’s first federal

application for a writ of habeas corpus.

In addition to the above opinions, Respondent attaches to

this brief in opposition the March 11, 1998 Entry from the

Supreme Court of Ohio denying Harrison leave to appeal

his conviction. (Respondent’s Appendix A)

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JURISDICTION

This Court has no jurisdiction over this matter pur-

suant to 28 U.S.C. §2244(b)(3)(E).

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STATUTORY PROVISIONS INVOLVED

The Petition sets forth the relevant federal statutes

involved. In addition, 28 U.S.C. §2244(d) provides:

(1) A 1-year period of limitation shall apply to

an application for a writ of habeas corpus

by a person in custody pursuant to the

judgment of a State court. The limitation

period shall run from the latest of -

(A) the date on which the judgment became

final by the conclusion of direct review or

the expiration of the time seeking such

review;

(B) the date on which the impediment to filing

an application created by State action in

violation of the Constitution or laws of the

United States is removed, if the applicant

was prevented from filing by such State

actions;

(C) the date on which the constitutional right

asserted was initially recognized by the

Supreme Court and made retroactively

applicable to cases on collateral review; or

(D) the date on which the factual predicate of

the claim or claims presented could have

been discovered through the exercise of

due diligence.

3

(2) The time during which a properly filed

application for State post-conviction or

other collateral review with respect to the

pertinent judgment or claim is pending

shall not be counted toward any period of

limitation under this subsection.

¢

STATEMENT OF THE CASE

On February 6, 1996, the Portage County, Ohio Grand

Jury returned a true bill on an indictment against Peti-

tioner Christopher Harrison, charging him with involun-

tary manslaughter. Harrison states in his petition that this

charge arose from a “head-on traffic collision resulting in

the death of the other motorist.” (Petition, p. 5) The

“other motorist” had a name: Joseph Nirschl. He was

twenty-six years old when he died. Involuntary Man-

slaughter was the only charge against Harrison. Harrison

was not charged with the offense of driving under the

influence of alcohol (“DUI”), although the elements of

involuntary manslaughter as charged required the jury to

find that Harrison caused the death of another as a proxi-

mate result of committing a misdemeanor of the first,

second, third, fourth degree, or minor misdemeanor. DUI

is generally a first-degree misdemeanor in Ohio.

The matter was tried to a jury. During its delibera-

tions, the jury asked the trial court a question: whether it

could find Harrison guilty of DUI but innocent of invol-

untary manslaughter. The trial court answered, “No.” The

jury found Harrison guilty of the offense of involuntary

manslaughter.

The trial court sentenced Harrison to a term of incar-

ceration of three to ten years and revoked his driver’s

license for life. Harrison appealed his conviction and

sentence to the Ohio Court of Appeals for the Eleventh

Appellate District, assigning as error on appeal the fol-

lowing: |

To [Harrison’s] prejudice, the trial court erred

by specifically instructing the jury that, on the

charged offense of involuntary man-

slaughter * * * it could not find appellant

“guilty” of the predicate misdemeanor * * * and

“not guilty” of involuntary manslaughter.

Harrison did not frame this as a federal constitu-

tional claim, but alleged solely an error in the application

of Ohio law. The state court of appeals affirmed Har-

rison’s conviction and sentence. Harrison attempted a

discretionary appeal to the Supreme Court of Ohio, which

declined jurisdiction in an entry dated March 11, 1998.

(Respondent’s Appendix A) It does not appear that Har-

rison filed a petition for a writ of certiorari to the United

States Supreme Court, the deadline for which would have

been ninety days later, on or about June 11, 1998.

In the meantime, the remainder of Harrison’s prison

term was suspended and he was placed on probation for

a period of five years under the supervision of the Por-

tage County Adult Probation Department.

On July 26, 1999, Harrison filed a Verified Petition for

Writ of Habeas Corpus in the Supreme Court of Ohio.

(Respondent’s Appendix B) Harrison had previously filed

a Verified Petition for Writ of Habeas Corpus in the

Supreme Court of Ohio challenging the State court of

appeals’ denial of his motion for a stay of execution of

sentence and bail pending appeal. The Ohio Supreme

Court dismissed this petition. Subsequently, Harrison

filed his first Application for a Writ of Habeas Corpus in

the United States District Court for the Northern District

of Ohio. The District Court dismissed that Application on

its merits.

In his second Verified Petition for a Writ of Habeas

Corpus to the State Supreme Court, Harrison raised for

the first time a federal constitutional claim regarding the

trial court’s answer to the jury’s question. Harrison did

not frame his challenge to the trial court’s answer to the

jury’s question as a federal constitutional issue during the

State direct appeal process. The Supreme Court of Ohio

summarily dismissed this Verified Petition on September

1, 1999.

On October 20, 1999, Harrison filed a second Appli-

cation for Writ of Habeas Corpus in the United States

District Court for the Northern District of Ohio. That

Application is the subject of this appeal. Respondent

Judge Kainrad moved the District Court for an Order

transferring the action to the Sixth Circuit Court of

Appeals pursuant to 28 U.S.C. §2244 and In re Sims, 111

F.3d 45 (6th Cir. 1997). The District Court granted Judge

Kainrad’s motion. The Court of Appeals denied Har-

rison’s request for an order authorizing the district court

to consider Harrison’s “second or successive petition for

habeas corpus relief.” It is from this order that Harrison

now attempts to appeal.

ARGUMENT

I. The decision to allow or disallow a second habeas

corpus application is not appealable.

The statue is very clear on this matter. 28 U.S.C.

§2244(b)(3)(E) specifically states:

The grant or denial of an authorization by a

court of appeals to file a second or successive

application shall not be appealable and shall not be

the subject * * * for a writ of certiorari.

(Emphasis added.) Yet Harrison is now attempting to

obtain a writ of certiorari from the court of appeals’

denial of his request for authorization from that court to

file his second application, the very thing that the above

statute explicitly prohibits.—

The above statutory provision was part of Title I of

the Antiterrorism and Effective Death Penalty Act (“Act”)

which the President of the United States signed into law

on April 24, 1996. This Court addressed the constitu-

tionality of 28 U.S.C. §2244(b)(3)(E) in Felker v. Turpin, 518

U.S. 651, 661-62, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996).

Tnis Court determined that because 28 U.S.C

§2244(b)(3)(E) has no effect on this Court’s jurisdiction to

entertain original habeas petitions, and because this

Court’s appellate jurisdiction can be limited by Congress,

Title I of the Act is constitutional. Therefore, this Court’s

jurisdiction over the present petition for a writ of cer-

tiorari is explicitly barred. Hohn v. United States, 524 U.S.

236, 250, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998).

7

II. The application at issue is clearly a second habeas

corpus application.

Harrison's first application for federal habeas corpus

relief was adjudicated on its merits by the United States

District Court for the Northern District of Ohio. (See

Petition, Appendix E) Specifically, the District Court mag-

istrate judge stated that, “Since there is no constitutional

entitlement to post-conviction bail, [the state court’s]

denial [of post-conviction bail] did not rise to a level of

deprivation of fundamental fairness.” The Report and

Recommendation of the magistrate judge was adopted by

the District Court. (Petition, Appendix D) Determining

the constitutionality of the issue raised by Harrison was

certainly a decision on the merits by that court.

Both of Harrison’s applications for federal habeas

corpus relief arose from the same state conviction, to wit:

his 1996 conviction for involuntary manslaughter.

Federal law considers Harrison’s second application

for federal habeas corpus relief a second or successive

petition even though Harrison is raising different

grounds than he did in his first application. “[A] claim

presented in a second or successive habeas corpus appli-

cation under section 2254 that was not presented in a

prior application shall be dismissed[.]” 28 U.S.C.

§2244(b)(2). A second or successive petition may be per-

mitted if certain criteria are met, but only after applica-

tion to and approval of “the appropriate court of

appeals * * * authorizing the district court to consider the

application.” 28 U.S.C. §2244(b)(3).

8

28 U.S.C. §§2244(b)(3)(A) and (C) provide that the

court of appeals may authorize the filing of a second

application only if the court determines that the applica-

tion makes a prima facie showing that it satisfies the

criteria of that subsection. Accordingly, an application

that raises different grounds for relief than stated in the

initial application is a “second or successive” application

requiring approval from the appropriate court of appeals

- in this case, the Sixth Circuit.

The relevant standard for allowing consideration of a

second or successive petition is set forth in 28 U.S.C.

§2244(b)(2):

A claim presented in a second or succes-

sive habeas corpus application under sec-

tion 2254 that was not presented in a prior

application shall be dismissed unless -

(A) the applicant shows that the claim relies on

a new rule of constitutional law made ret-

roactive to cases on collateral review by

the Supreme Court that was previously

.unavailable[.]

Harrison argues in his petition that the United States

Court of Appeals for the Sixth Circuit decided a case that

applies retroactively to his case, to-wit: Herrington ov.

Edwards, 6th Cir. Ct. App. Unreported Case No. 97-3542

(1/99). (Petition, Appendix F) However, Herrington is not

a case by the Supreme Court that this Court had made

retroactive to cases on collateral review.

Harrison argues that this case presents the same cir-

cumstances noted by this Court in Stewart v. Martinez-

Villareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849

(1998), wherein this Court noted that the case did not

present a situation where a prisoner raised a Ford [v.

Wainright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335

(1986)] claim for the first time in a second or successive

habeas petition. A Ford claim is an assertion that the

petitioner is insane, and therefore cannot be executed. In

Stewart, the respondent Martinez-Villareal had earlier

asserted a Ford claim that was dismissed as premature.

Martinez-Villareal later moved the district court to re-

open his Ford claim. This Court eventually held that 28

U.S.C. §2244(b) did not apply to Martinez-Villareal’s Ford

claim, because the federal district court had never ruled

on its merits, having earlier dismissed it as premature. It

was dismissed as premature because his execution was

not imminent and his competency to be executed could

not be determined until that time. Id. at 645, 118 S.Ct.

1618, 91 L.Ed.2d 335.

-. Harrison asserts that he was denied a fundamentally

fair trial under the Fifth, Sixth, and Fourteenth Amend-

ments to the United States Constitution due to the trial

court’s failure to permit the jury to return inconsistent

verdicts. Harrison calls this a Herrington claim. However,

Harrison's Herrington claim is unlike Martinez-Villareal’s

Ford claim in several important respects. First, a Ford

claim cannot be adjudicated until execution is imminent,

because such claim depends on the mental health of the

inmate as his execution date draws near. A Herrington

claim can be adjudicated at every level in the state courts.

One can “federalize” a claim based on an alleged trial

error at trial level, and throuchout the state direct appeal

process. In this case, Harrison failed to “federalize” his

claim regarding the trial court’s response to the jury’s

question until after he had exhausted his direct state

10

appeals. Under Ohio law, one must raise constitutional

claims in a direct appeal if such claims are apparent on

' the record. The alleged error in this case (the alleged

erroneous answer to the jury’s question) was apparent on

the face of the record from the moment the answer was

given. The fact that a federal case was decided later that

purportedly supports the federal nature of this claim

does not negate the fact that Harrison could have, and

should have, challenged the federal constitutionality of

the answer at that time and on direct appeal. But Har-

rison failed to recognize the potential federal constitu-

tional nature of his claim until such claim had been

waived.

Second, in relying on Stewart, Harrison overlooks the

obvious: Ford is a United States Supreme Court case,

which can be the basis of a second or successive petition.

Herrington is an unpublished Sixth Circuit case, which

cannot.

Finally, the holding in Herrington is irrelevant to Har-

rison’s situation. Herrington was charged with two sepa-

rate counts: aggravated murder and aggravated robbery.

The trial court instructed the jury in that case that it must

return a guilty verdict on both counts, or a not guilty

verdict on both counts. In the present case, Harrison was

charged with only one count: involuntary manslaughter.

There was only one possible verdict; either guilty or not

guilty of involuntary manslaughter. There was not a sec-

ond count. There could not be inconsistent verdicts. Thus,

Harrison does not even have a so-called Herrington claim

to present even if the district court were to consider his

second application for federal habeas corpus relief.

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The respondent Judge Kainrad’s position can be

summed as this: Harrison should have known when he

filed his first federal habeas application that he had no

federal constitutional right to bail pending appeal.

Because he chose to file that first application, the merits

of which were addressed, any subsequent application

should be judged by the standards set forth by Congress

for allowance of a second or subsequent petition. The

policy of this legislation is so that all federal claims

possible be set forth in the very first application for

federal habeas corpus relief. This policy has been served

in this case where Harrison has tried to “piecemeal” his

federal claims and has not been allowed to do so.

III. Harrison’s second application was filed outside

the one-year statute of limitations

Even if the Sixth Circuit ordered the District Court to

consider Harrison’s present application, such application

is time-barred and would be dismissed. A one-year stat-

ute of limitations applies to applications seeking a writ of

habeas corpus filed by a person held in custody by a

state. Harrison’s present claim is barred by the one year

statute of limitations established by 28 U.S.C. §2244(d),

which provides:

(3) <A 1-year period of limitation shall apply to

an application for a writ of habeas corpus

by a person in custody pursuant to the

judgment of a State court. The limitation

period shall run from the latest of -

(E) the date on which the judgment became

final by the conclusion of direct review or

12

the expiration of the time seeking such ~

review;

(F) the date on which the impediment to filing

_ an application created by State action in

violation of the Constitution or laws of the

United States is removed, if the applicant

was prevented from filing by such State

actions;

(G) the date on which the constitutional right

asserted was initially recognized by the

Supreme Court and made retroactively

applicable to cases-en collateral review; or

(H) the date on which the factual predicate of

the claim or claims presented could have

been discovered through the exercise of

due diligence.

(4) The time during which a properly filed

application for State post-conviction or

other collateral review with respect to the

pertinent judgment or claim is pending

shall not be counted toward any period of

limitation under this subsection.

(Emphasis added.)

A. Herrington is not a Supreme Court case for pur-

poses of 28 U.S.C. §2244(d)(1)(C)

As discussed in the previous section, the case upon

which Harrison relies, Herrington, is not a Supreme Court

case, so the date that it was decided (January 1999) is

irrelevant for purposes of subsection (C) above.

13

B. The time for direct review expired on June 11,

1998 for purposes of 28 U.S.C. §2244(d)(1)(A).

Harrison attempted a direct appeal from the affir-

mance of his conviction and sentence to the Supreme

Court of Ohio. On March 11, 1998, the Supreme Court of

Ohio declined jurisdiction. (Respondent’s Appendix A)

Harrison had ninety days to file a petition for writ of

certiorari in the United States Supreme Court and failed

to do so. Therefore, Harrison’s direct appeals were

exhausted on or about June 11, 1998. Harrison then had

one year from that date to file his federal habeas petition:

on or about June 11, 1999. He failed to file the present

federal Application for Writ of Habeas Corpus until Octo-

ber 20, 1999, more than four months late. Therefore, this

claim would be appropriately dismissed by the District

Court.

C. Harrison’s state petition for writ of habeas

corpus was not a “properly filed application”

for purposes of tolling the statute of limitations

pursuant to 28 U.S.C. §2244(d)(2).

Harrison filed a “Verified Petition for Writ of Habeas

Corpus” in the Supreme Court of Ohio on July 26, 1999

(Respondent’s Appendix B) that was not dismissed until

September 1, 1999. However, this Verified Petition did not

toll the time for filing a federal application under 28

U.S.C. §2244(d) because the statute of limitations expired

before Harrison filed his latest state habeas action. The

time for direct review of Harrison’s present claim expired

on or about June 11, 1998. At that time, there were no

collateral actions pending in his case. Harrison’s last state

14

habeas petition was filed on July 26, 1999, approximately

six weeks after the statute of limitations expired pursuant

to 28 U.S.C. §2244(d)(1)(A). Harrison's last state habeas

action could not toll a statute of limitations that had

already expired. See Rashid v. Kuhlman, 991 F.Supp. 254

(S.D.N.Y. 1998). Therefore, this claim would be appro-

priately dismissed by the District Court.

D. Harrison failed to raise his federal constitu-

tional claims in his state direct appeal.

Though a person in state custody may challenge the

constitutionality of his state court conviction by seeking

habeas corpus relief pursuant to 28 U.S.C. §2254, he must

first exhaust his available state court remedies by pre-

senting his claims to the state courts to provide those

courts an opportunity to remedy any constitutional infir-

mities in his conviction. Rust v. Zent, 17 F.3d 155, 160 (6th

Cir. 1994). It is the applicant’s burden to prove exhaus-

tion. Darr v. Burford, 339 U.S. 200, 218-19, 70 S.Ct. 587,

597-98, 94 L.Ed. 761 (1950). “The exhaustion requirement

is satisfied when the highest court in the state in which

the petitioner was convicted has been given a full and fair

opportunity to rule on the petitioner’s claims.” Rust,

supra, quoting Manning v. Alexander, 912 F.2d 878, 881

(6th Cir. 1990).

However, “[e]xhaustion is a problem only if the State

still provides a remedy for the habeas petitioner to pur-

sue, thus providing the state courts an opportunity to

correct a constitutionally infirm state court conviction. If

no remedy exists, and the substance of a claim has not

been presented to the state courts, no exhaustion problem

15

exists; rather, it is a problem of determining whether

cause and prejudice exist to excuse the failure to present

the claim in the state courts.” Rust, supra. “Cause and

Prejudice” requires an applicant to demonstrate cause for

the procedural default and actual prejudice resulting from

the alleged constitutional error. Rust, supra.

In this case, Harrison failed to present his claim as a

federal constitutional claim to the Ohio courts. At first

glance, therefore, he has not exhausted his state remedies

as to his federal constitutional claim. However, there is

no state remedy available to Harrison at this time for him

to pursue. Ohio postconviction relief is no longer avail-

able to Harrison because Ohio’s doctrine of res judicata

bars any claim that was or could have been presented on

the direct appeal from his conviction and sentence. The

doctrine of res judicata bars a convicted defendant from

raising and litigating in any proceeding, except an appeal

from that judgment, any defense that was raised or could

have been raised by the defendant at trial. State v. Szefcyk,

77 Ohio St.3d 93 (1996), at the syllabus.

In this case, Harrison had all of the information that

he needed to present his constitutional claim regarding

the jury question and the trial court’s answer to that

question to the Ohio courts. Harrison failed to do so and

has not shown, and cannot show, cause for his failure to

do so. To establish cause, a habeas applicant must present

a substantial reason to excuse his procedural default.

Rust, supra, at 161. “[T]he existence of cause for a pro-

cedural default must ordinarily turn on whether the

[applicant] can show that some objective factor external to

the defense impeded counsel’s efforts to comply with the

State’s procedural rule.” (Emphasis added.) Rust, supra,

16

quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct.

2639, 2645, 91 L.Ed.2d 397 (1986). Surely, Harrison’s pres-

ent issue regarding the state trial court’s answer to a jury

question could have long ago been framed as a federal

constitutional issue, notwithstanding that Herrington, an

unpublished federal appellate case, had not been

decided.

CONCLUSION

For the foregoing reasons, this Court should decline

certiorari. =

Respectfully submitted,

Denise SMITH

Counsel of Record

Victor V. Viciuica

Ke._u K. NorMAN

Portace County Prosecutor’s OFFice

466 South Chestnut Street

Ravenna, Ohio 44266

(330) 297-3850

Attorneys for Respondent

Hon. Joseph R. Kainrad, Judge.

App. 1

APPENDIX A

THE SUPREME COURT OF OHIO

State of Ohio, : 1998 TERM

Appellee, : Case No. 98-80

v. : ENTRY

Christopher G. Harrison, ‘(Filed Mar. 11, 1998)

Appellant. '

Upon consideration of the jurisdictional memoranda

filed in this case, the Court denies leave to appeal.

COSTS:

Docket Fee, $40.00, paid by Guarnieri and Secrest.

(Portage County Court of Appeals; No. 96P0240)

/s/ Thomas J. Moyer

THOMAS J. MOYER

Chief Justice

App. 2

APPENDIX B

IN THE SUPREME COURT OF OHIO

STATE, ex rel.

CHRISTOPHER G.

HARRISON

401 Greenbriar Drive

Cortland, OH 44410

Petitioner

Case No. 99-1380

VERIFIED PETITION

FOR WRIT OF HABEAS

CORPUS

(Filed Jul. 26, 1999)

Vv.

HON. JOSEPH R.

KAINRAD, JUDGE

Portage County Court

of Common Pleas

203 West Main Street

P.O. Box 1035

Ravenna, OH 44266-1035

Respondent

mee ee ee eee ee ee ee eee”

ORIGINAL ACTION IN HABEAS CORPUS

Michael D. Rossi Victor V. Vigluicci

(#0005591) Portage County Prosecutor

GUARNIERI & SECREST 466 South Chestnut Street

151 East Market Street Ravenna, Ohio 44266

P.O. Box 4270 (330) 297-3850

Warren, Ohio 44482 ATTORNEY FOR BOSE

(330) 393-1584 RESPONDENT

ATTORNEY FOR

PETITIONER