Opposition Brief — Bagley v. White

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: : Supreme Zour, U.S.

No. 00-228

In the Supreme Court of the United States

\ FILED

SEP 8 2000

CLERK

MARGARET A. BAGLEY, WARDEN,

Petitioner,

-VS-

FREDERICK WHITE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

DAVID H. BODIKER

Ohio Public Defender

KORT GATTERDAM

Assistant State Public Defender

Counsel of Record

J. JOSEPH BODINE, JR.

Assistant State Public Defender

Office of the Ohio Public Defender

8 East Long Street, 11" Floor

Columbus, Ohio 43215-2998

(614) 466-5394

COUNSEL FOR FREDERICK WHITE

No. 00-228

In the Supreme Court of the United States

MARGARET A. BAGLEY, WARDEN,

Petitioner,

-VS-

FREDERICK WHITE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Petitioner, FREDERICK WHITE, through undersigned counsel, respectfully requests leave

to file his Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

without prepayment of costs or fees and to proceed in forma pauperis pursuant to Rule 39.

Petitioner was represented by state-appointed counsel on appeal to the Sixth Circuit

pursuant to Ohio Rev. Code Ann. § 120.06. Petitioner's appeal to the United States Court of

Appeals for the Sixth Circuit proceeded in forma pauperis.

Petitioner's affidavit in support of this motion is attached.

Respectfully submitted,

DAVID H. BODIKER

Ohio Public Defender

KORT GATTERDAM

Assistant State Public Defender

Counsel of Regor

1408S BODINE, JR.

ssXtant State Public Defender

Office of the Ohio Public Defender

8 East Long Street, 11'" Floor

Columbus, Ohio 43215-2998

(614) 466-5394

COUNSEL FOR FREDERICK WHITE

No. 00-228

In the Supreme Court of the United States

MARGARET A. BAGLEY, WARDEN,

Petitioner,

-VS-

FREDERICK WHITE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

AFFIDAVIT OF INDIGENCY

I, FREDERICK WHITE, being first duly sworn, depose and say that in support of my

motion to petition for a Writ of Certiorari without being required to prepay fees, costs or give

security therefor, I state that because of my poverty I am unable to pay the costs of said

proceeding or to give security therefor; that I believe I am entitled to redress.

I further swear that the responses which I have made to the questions and instructions

below relating to my ability to pay the cost of petitioning for a Writ of Certiorari are true.

1. Are you presently employed? Lo

A. If the answer is yes, state the amount of your salary or wages per month and give the name

and address of your employer.

B. If the answer is no, state the date of your last employment and the amount of the salary or

; J Ce)

wages per month which you received. ra a

2. Have you received within the past twelve months any income from a business, profession or

other form of self-employment, or in the form of rent payments, interest, dividends, or other

sources? No

A. Ifthe answer is yes, describe each source of income and state the amount received from

each during the past twelve months.

3. Do you own any cash or checking or savings account? No

4. Do you own any real estate, stocks, bonds, notes, automobiles or other valuable property

excluding ordinary household furniture and clothing? No

A. If the answer is yes, describe the property and state its approximate value.

5. List the persons who are dependent upon you for support and state your relationship to those

persons. MA

I understand that a false statement or answer to any question in this affidavit will subject me to

Ay A

Duly witnessed and sworn before me, a Notary Public, this 7th day of September, 2000.

penalties for perjury.

FREDERICK WHITE

Se ume TUE Ut

No. 00-228

In the Supreme Court of the United States

MARGARET A. BAGLEY, WARDEN,

Petitioner,

-VS-

FREDERICK WHITE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FREDERICK WHITE’S BRIEF IN OPPOSITION

TO THE WARDEN’S PETITION FOR WRIT OF CERTIORARI

DAVID H. BODIKER

Ohio Public Defender

KORT GATTERDAM

Assistant State Public Defender

Counsel of Record

J. JOSEPH BODINE, JR.

Assistant State Public Defender

Office of the Ohio Public Defender

8 East Long Street, 11"" Floor

Columbus, Ohio 43215-2998

(614) 466-5394

COUNSEL FOR FREDERICK WHITE

QUESTIONS PRESENTED

Is Ohio Rule of Appellate Procedure 26(B) so inadequate and inconsistently applied by

the Ohio courts that it may not serve as the basis for the procedural default of a claim

presented in a petition for writ of habeas corpus?

Does a criminal defendant enjoy the right to the effective assistance of counsel on a first

direct appeal of right from a criminal conviction?

TABLE OF CONTENTS

Page No.

QUESTIONS PRESENTED.........-.-.c--snssosscsccssnssscnssnssesensnssnsonsnscnsonssunssnsonssusonensnconsonssnssnssesnscnsnssesse i

I a lath cnietnighininhbinbceabbababehaninanesmnennshianbonnesune ii

i iesicahstsseovndiovreosiomnisuosrersorressog iv

ee Es rs Fee EAE LE CD VD ocrscs ven sesencscsecescconsecsssoocscoscoseesssosneoeseoses l

ee BD paced nsondapndcnsavenbcobicéseenovseorbeocccessceonnosnevvecenesees 2

REASONS WHY THE PETITION SHOULD BE DENTED........0.sssscscorsrcsensessrccsssesessorescesesecossvoess 5

I. OHIO APPELLATE RULE 26(B) DID NOT PROVIDE MR. WHITE

AND SIMILARLY SITUATED INDIVIDUALS WITH A FAIR AND

REASONABLE OPPORTUNITY TO HAVE THEIR CLAIMS HEARD. .............:::ccccceeeee 5

A. Appellate Rule 26(B) was not in effect until two years after Mr. White

a sels tnbipsabh bea depada sNeshngdnsbonisssiiehaoesdnbonasetiess 5

B. At the time of Mr. White’s Delayed Motion for Reconsideration, the

Ohio Courts did not consistently apply the ninety day time provision

I TN a a ia dace aha cendichthdincithiinadibeosonssneecessianen 7

C. At the time Mr. White’s Rule 26(B) Application was pending, Ohio

courts inconsistently applied the good cause exception to the ninety day

SE a ais entertains cacsenndaeersinvsessacsbsesveenasesscosssvcnnesscoes 9

II. A CRIMINAL DEFENDANT ENJOYS THE RIGHT TO THE

EFFECTIVE ASSISTANCE OF COUNSEL ON A DIRECT APPEAL OF

RIGHT, AND THE STATES ARE FREE TO STRUCTURE THE DIRECT

PC Fe REF Te peated bien ethic dinhavcharsibanstsnus vitterennanisinnnenss 14

A. This case does not present a question of great importance or scope

STE OE Is I ais ntarrsa recientes ca iat seeesitaiapsenanbipovns ns dvsivsebinasataenscoangs 14

B. The Warden should not be permitted to have her cake and eat it to0. .............::ccceeeeeees 16

C. White v. Schotten cannot conflict with the authority in other Circuits

because almost every other state addresses appellate ineffectiveness

Clalaah Th POUE-COIVIETIOA CEI, wiscirccitsicsssscsenstsintnnnsveciconorbbcscancdoressviissaressienninnsys 19

Ben. ae i eisinrsaicnicieg heeassneacicencaeniantitseceteaiiedsdicireiles ap shaniiiandnteceatiickcd ikalignesriebih uleevahgiagile 20

APPENDIX:

Sg Tole ME DE IETS AE OR IML SEE A-l

INO UR MeN PO A hat Nadu da onbnn sapgconiadla i aameaelembon Race ba A-3

SUE IR: UES, WOU, Rs EN icin ctsnosndenininediesStaiiediininvsnbuiness Subsndebaehoubaciansblenenabepiceetiolid A-3

Ohio v. Dillon, 1996 WL 467303 (Mont. Ct. App. Aug. 15, 1996)..........08. A-4

Ohio v. Sparks, No. C-84-143 (Lucas Ct. App. Feb. 11, 1997)... A-9

Ohio v. Williams, 1995 WL 338613 (Jefferson Ct. App. June 1,

ae re saesbnshtcedihipeottenicapte ian sueastemsalehlaharkhesevnieiauhade sev venivaiesinasevtapebiaksin A-12

Ohio v. Flowers, 1998 WL 456453 (Lucas Ct. App. July 10, 1998).......0..... A-16

Ohio _v. Newlin, 1993 WL 308390 (Franklin Ct. App. Aug. 5,

PURINE vtiichccppsicseiianiciian canelhaescteatoheesleete tiskubiiciieeigioiee Shchbstseanitlbabiateiusiceui A-18

Ohio v. Bort, No. 96CA006597 (Lorain Ct. App. Oct. 30, 1997) oe. A-21

Pe PN CIS ince cuinticdsntealak coin ccenradanetnsenesoneinscbounsissssneennvadbiontencines A-22

Edwards v. Foster, 165 F.3d 27 (6th Cir. 1998)(unpublished) ...................... A-41

ill

TABLE OF AUTHORITIES

CASES

CMe ss Seema, SESE 55 Fad Cie Hci tacevicedasstcinsashnsesichsneltdian scsnasémanteobonices 19, 20

itinns y, Toueienns, BOG ESk DES CAT Cie: SON sins esesss ccs bccn 13

a Se a Oe eee Ce CRUE MAAN y BE wes saninDadictintednstivisteersepokriniteasuiaanbousioatedvleeusiaes 5

Pease Re, CED Fee iF COU Gols FD siinissckcvvseivecetesccsbesescuddarneiveshovbdebnleonssebousons 16

BOE READ. Ae BO 0 SPUN oi vscendcondencaiiudeshadetaiesnieieucbdtaminieaoaseboiconadiecdian 11

Grishin v, Taal, 948 F.26 1459 EP Cie, NDPI)cascsscssnsonscrsissatovenctssssnsnssercdesnovvvencbobsotss 13

Gutierrez v. Moriarty, 922 F.2d 1464 (10" Cir. SOT P rcsaahacieisidibnieedeniatutpaibohossintstiehardicalondie 13

; Kim v. Villalobos, 799 F.2d 1317 (9th Cir. ik ee iin demutedaleaeidiads 5

! 7 King v. Puckett, 1 F.3d 280 (5'" Cir. 1993) ...ccsccccscssseccsssscssessssecsesssscsessssessessssssesessseccessses 13

EO 6 ESS SENSE, FR OI soso sticceccesiarcnsidectoasciadsonnicanuntinanoconni 11

Manning v. Alexander, 912 F.2d 878 (6"" Cir. 1990) ....c.cccccsccsssssssessessessessessesseeseesesees 5,14

RE SN Oe BF Abs CIE ET Pic cisseitcetins kets caiconjastiaenlnaeionaiid oeabeaditebiidnbasaadeibeiectadtimen 6

NE 5 I, SIF Gili, Fe OF Pe Piiicsnivtinconcionnsnecnnsshieassnansarngstnunniebenigusnstoapoeseenibiniis 5

Morales v. Calderon, 85 F.3d 1387 (9! Cir. 1996) ...ccccccssssssssssssssessssssssssssssssvessssvvecsveeeve 12

ee A SRNL TAP PURE ae EU EC MUET D esisniinscciansninsniethavitinsesncscinccasmnditabaiuymacrsiiunige 20

iia, aie GAS UTE AF ii oshactipinstselbtirnsccbereensnsnsncasctanssnvronesiat 8

A I EE OE ii eniccthicsesatnemspnedamiernnnishansansiiegloneastlensdanen 11

niihis i Mineeile GD Oh Te Ok TI ai, st is dba cettetinceneonlorssantnes deiseaant 8

Ohio v. Bort, No. 96CA 006597 (Lorain Ct. App. Oct. 30, 1997) ....ecccccseseeseesceeseeeees 12

OB CN I eee PO ID isso laces ccsdpavstdascSpscbsersacdnsisselansinsemilandiccstasobooines 9

OR hb ae S MR ea nh ane NOs NORGE oP Ar Sse NSO 8

- Ohio v. Colwell, 660 N.E.2d 1173 Lo WTEC Ty | AE NAU ADR ARCO 12

laa Dire GEG A I isin incisscsesesiesspiecacsdenadiekeynaniccnined dares 8

Ohio v. Dillon, No. 725 1996 WL 467303 (Mont. Ct. App. Aug. 15, 1996) ....c...scss00. 10

OO 0 icine dcccejdsenttdicnas casesurebdcdiaubhcsuksnchtebenninressansdcatnies &

a ee SE OS SAD EPO oc scasscnecesesvavadcdicsenasssnveswinatnspeniddindtinevsessocioedeusdarsaaees 8

iis, Pope, O52 VE 20 999 C905) ncaa cnc caesceceneusevceceeuroereneconecsencn 9

I SEDO S6.MGREE FIP CSPI) orecisnscsinscssssssonevanscbanssosnssevesseevedscsbosesvoteoroovesinass 1]

Ohio v. Flowers, 1998 WL 456453, No. C-92-337 (Lucas Ct. App. July 10, 1998)........ 10

eR TER POE BSF CE PUOD harsvecsscervsvisesoiscsinicesvossuvesserssesbesebsevvesssnssuevessesbvonaens 18

Fe 0 a NE OED isnt inssevsbusinvntincevsicsuessinniinseteunviiciusyurtuininwiseneseeses 18

ee A Ma, ee A ED ss ennvapnisssinesicésvepnalésanvtsiisinntesnisinprseniteceivvnsineseesinesoudeni 9

Ohio v. Hamblin, 643 N.E.2d 545 (1994)... TEAST SAINT EEF Bot RAD Pte OE s

ey LEE Rees SFSU C8 POD sascencenrsenevhssarinvsnstusecssenninaonvisinnenvnalacosesoveseves 9,11

ee DD wis oscncesmsinnndcinanniviatiusestansshabasiskasneaindibwwescinievbeneas 6,18

Ss SS Pe Pw OO RIE siniciniswcitncrennrveraltbesenpinsnimenisiiunenivinnteishindiameesioubéversninosees s

Cr ID Bo ccncsanienmnsirnspubsiiahonuntasnnenvusinituiineppenansbinsevenerceds &

A, MC a I OED ck ic sianindapnevisssomnsnntsbibnwistsomnbassandsosusuneidurvuvtsnveniisessehions 9

Sa ee , We PEt PR LN yess cxceeesnncensersnesinrsonsmnstnctasseeconsiuronsiteenvncnonses .

Fe Pe EE AE OED wns sysnccrnencesnmvusiconnentevivereseeseusessesviessesksursainocevavnoyse 1]

om Ohio v. Murnahan, 584 N.E.2d 1204 (1992) ..........cscsscsscessesscssseceesessssesseeseeseereree Dp 14, 17

— Ohio v. New, No. 94APA 10-1547 (Franklin Ct. App. Dec. 3, 1996) scscscscsssoseesssseeee '

Ohio v. Newlins, No. 87AP-222, 1993 WL 308390 (Franklin Ct. App. Aug. 5, 1993)... 11

Ohio v. Nickelson, 661 N.E.2d 168 (1996) ...ccccccsssssccssssssscsssssssssesssssssssesesesssssessssessseeessen 7

Ohio v.'Peeples, 643 N.E.2d 1112 (1994) ...ccssccsssssscsscoccssssesssescccssssssssssssssssssssseseseessee 8,10

CS, EES GIP Pde 19k £1 POO) rcisensssvicesesnssacvscncnssnesavcsocorosecene Sania desaiahiauedsiiielines 12

Ohio v. Reddick, 647 N.E.2d 784 (1995) ......ccsssscoscsssscscssssssssssvssssossessssesesestssssessesessssseee 10

"Ohio v. Robinson, 660 N.E-2d 472 (1996) ....ccc.sccccccccccccessscsccosscsssssussssssssseccssssssssseeseeeesens 17

I i cseisinieccntinmnoenesbodhsapesinnaics g

ait

Cle wv, Bienes, GEG FLEE.de 66 Sie CO oe ieinsiastisasticianisttinatnsianilanela adie ndimeiixaeiidias cat 8

Ohio v. Smith, 640 N.E.2d 813 (1994) ...cccccsssssssssessesseeeese ienlaipaiaedeincsesscasaeeasaaoalons 8

Ohio v. Sparks, No. C-84-143 (Lucas Ct. App. Feb. 11, 1997)... ccceescssessseeseeeseees 10

ile oe, Snes, GED FE cie CEE COO OOD tinnssissiesansnisiinnicssinnenennenlbiintionnaitintichabiataanintiendaie 10

ike: 9, eine, Cae. Beas aee: F 0 CUED mancctitcnicscanenninsebeicsaneninsinihainnnsiaiansiilalasabaamnabiinadain 10°

ie Oh ee, Ge FE aie SOR COED scccersinineisecticceensneeientahietititetindineniininnisniicginantiacaiaiaibant bites 17

ie se, SE, ED FS 6 Oe ee Pa nanscesncineienaicininaneheensensntsiieinniniapainiasniaiininanithe 10

Ohio v. Timmons, 640 N.E.2d 814 (1994) oo... ececesseseees ssssnesensnnesesseeneenvenssnnesessscnsensess 8

LOR 00, Senne, Chapa Saale 5 © UW C0 SUMO ccstcesnccsistneehsastnccinnieenenessaasnnsdiiiniomspieseneenithiinhpiahd 8

SR Se SEE SUE HOEY C8 chinkininsectsinninseienhenniadiniinpaiainahineasanceldiaiiageieanmibieiaiath 12

Sie St, AT, GiSar SS AELan WOON CINE Biccitetnnnsecsantvictensihcedehbinhintaciestnaniennacasinibidnshnniibtnases 10

Cie oe, See, SEs OUes ane. WIE (0 Pe eeanttcicansnirnenticninsiieseinnininnnnshdnnbcalsdlelincadiiabidiinhetiigs 10

Ohio vy. Williams, 1995 WL 338613, No. 88-J-26 (Jefferson Ct. App. June 1, 1995)..... 10

Nes oe Sr , GOe Cece Bee CO PD icticenscrceseesabinnhinssnesniseininnt sanansbndilanisinihioninineis 10, 12

Ohio v. Winstead, 658 N.E.2d 722 (1996) ......ssssssesssesssssssessseesnnesnseeneessessneeeneesnseensessnees 8,9

CO 0, RS. GEE PU thsi 2) CF ED nincviichicsneaishnicnahisbcesciandaninsinvbinnimabendbiieintwisiannsn 6, 18

i, Se SS: SE Cases. Sa ie WOM IEE sibdineikicichitiio haiealénesinisicisibiandehetiainbciditesiaaleaadamihanibtiianhaiine 5

ES SS, SE Fk ae Ce es ED snccnadecanesnnsnttchiecneviinsehictidindinadnnabadivealaietintinn 7

Reynolds v. Comm'n of Internal Revenue, 861 F.2d 469 (6th Cir. 1988)... 17

eet oe Mai I Pi TIO te I ia iiiniicicicccinsssnanrebbiehdplasAicemeticsaccsanicn 13

eS Sees Pe eam AED CE OUP iaceiennsiinsstieniadilanbnenlinicinsnsiiitindbinnennussnttanstincbliinapabinne 10

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969) ...........ccccccsssssesssessssesssssessesees 13

United States v. Owen, 54 F.2d 271 (6th Cir. 1995) .........cccccsssccssscsssesscesesssesssesssessessees 16

Se Be, TINO, Abe Fak FO 4 GUO ON ciittcnn chai bitiatnnatinnwicsiinaneresashnnasninnlanntianisibihinnec 9, 19, 20

RULES AND STATUTES

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a IAT oles ccepsenactsaphiton chica niciemeh iil tienenverte ahaa beeline teiealisanieadnce 19

ea SAU a Vilesdict. ance cntiinincendicenigniesasiianenen nani tiiahieistirennheieeapnelatinanilediamninanaiaidicanititidiin 19

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CONSTITUTIONAL AND STATUTORY PROVISIONS

The Sixth Amendment to the United States Constitution provides in pertinent part: “In

all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of

counsel for his defense.”

The Fourteenth Amendment to the United States Constitution provides in pertinent part:

“nor shall any state deprive any person of life, liberty, or property, without due process of

”

law.

Ohio R. App. P. 26(B) (Rule 26(B)) is reproduced in the appendix to this brief in

opposition.

Current and Former S. Ct. Prac. R. II(2)(D)(1) are reproduced in the appendix to this

brief in opposition.

STATEMENT OF THE CASE AND FACTS

On February 16, 1989, the Cuyahoga County Grand Jury indicted Frederick White for

one count of aggravated murder with a firearm specification, two counts of felonious assault with

firearm specifications, and one count of having a weapon under disability. The State alleged that

Mr. White shot and killed his ex-wife Kim Hawkins, as she was leaving her job, in the early

morning hours of November 5, 1988. —__

On May 12, 1989, after a jury trial, Mr. White was found guilty on all counts and firearm

specifications. On May 15, 1989, he was sentenced to twenty years to life for aggravated

murder, three years for the firearm specification, and eight to fifteen years on each count of

felonious assault. The sentences were imposed consecutively to one another.

Mr. White timely appealed to the Cuyahoga County Court of Appeals. On January 31,

1991, the court of appeals overruled Mr. White’s assignments of error. State _v. White, No.

57944 (Ohio App. Cuyahoga Co., Jan. 31, 1991). However, the court sua sponte ordered the trial

court to vacate one of the convictions for felonious assault under the allied offenses doctrine.

After his convictions were affirmed, Mr. White was without counsel until he wrote to the Office

of the Ohio Public Defender.

Mr. White asked the Ohio Public Defender to review his case after the time had expired

to file a timely motion for reconsideration in the court of appeals (ten days) or a timely appeal to

the Ohio Supreme Court (thirty days). Pursuant to the Office of the Ohio Public Defender’s

statutory mandate (Ohio Rev. Code Ann. § 120.06), Mr. White’s case was reviewed and it was

determined that he was denied the effective assistance of appellate counsel.

On February 16, 1994, Mr. White, through counsel, elected to complete his direct appeal

of right by filing an Application for Reopening with the court of appeals pursuant to Ohio v.

Murnahan, 584 N.E.2d 1204 (1992), and Ohio App. R. 26(B). White asserted four issues that

appellate counsel failed to raise during the first component of White’s direct appeal of right. On

October 19, 1994, the court of appeals overruled Mr. White’s claims. State v. White, Mot. No.

49174 (Ohio App. Cuyahoga Co., Oct. 19, 1994). Mr. White timely appealed to the Supreme

Court of Ohio. On April 26, 1995, the Supreme Court of Ohio affirmed the court of appeals

‘

decision. State v. White, 647 N.E.2d 787 (1995).

Mr. White filed a petition for writ of certiorari with this Court. Mr. White’s conviction

became final on October 25, 1995, when this Court denied his the petition.

On December 27, 1995, Mr. White filed a petition for writ of habeas corpus with the

United States District teie: Northern District, Eastern Division. Mr. White raised four grounds

for relief. The Warden filed a Return of Writ asserting that Mr. White’s claims were barred on

the grounds of procedural default. On July 23 1996, the Magistrate Judge recommended that the

claims be dismissed due to procedural default. Mr. White filed timely objections. On August

14, 1997, the District Court adopted the Magistrate’s Report and Recommendation without

analysis.

Mr. White was granted a certificate of appealability and pauper status by the United

States Court of Appeals for the Sixth Circuit on March 16, 1998. The Sixth Circuit reversed the

district court. While it declined to address the adequacy of Ohio App. R. 26(B), the court held

that Mr. White could establish cause even if his claims were procedurally defaulted. The court

remanded the case to the district court to determine whether Mr. White was prejudiced from

appellate counsel’s ineffectiveness.

The Warden petitioned the Sixth Circuit to rehear the case en banc, and the court

summarily denied the petition. The Warden then petitioned this Court for a writ of certiorari.

Mr. White now submits his brief in opposition.

REASONS WHY THE PETITION SHOULD BE DENIED

I. OHIO APPELLATE RULE 26(B) DID NOT PROVIDE MR. WHITE AND

SIMILARLY SITUATED INDIVIDUALS WITH A FAIR AND REASONABLE

OPPORTUNITY TO HAVE THEIR CLAIMS HEARD.

A. Appellate Rule 26(B) was not in effect until two years after Mr. White filed

his application to reopen.

A state procedural rule that does not provide a habeas petitioner with an adequate

opportunity to present a federal claim to the state courts constitutes an inadequate rule, and any

state procedural default which is a product of that inadequate system should not be honored by

the federal courts. See, e.g. Michel v. Louisiana, 350 U.S. 91, 93 (1955) (test in determining

whether federal court will consider merits of a claim not presented to state court is whether the

defendant had a reasonable opportunity to have the claim heard and determined by the state

court); Reece _v. Georgia, 350 U.S. 85, 89-90 (1955). If a state procedural requirement

consistently prevents a “fairly presented” claim from being heard on the merits, the state

procedures are inadequate. Kim v. Villalobos, 799 F.2d 1317, 1321 (9th Cir. 1986); Easter v.

Endell, 37 F.3d 1343, 1345 (8th Cir. 1994).

In Ohio v. Murnahan, 584 N.E.2d 1204 (1992), the Supreme Court of Ohio determined

that appellate ineffectiveness claims must be litigated as part of the direct appeal process and not

in post-conviction proceedings. Prior to Murnahan, there was statewide inconsistency regarding

where such claims should be presented. See Manning v. Alexander, 912 F.2d 878 (6" Cir.

1990).

Because of Murnahan, Ohio enacted Appellate Rule 26(B). Rule 26 (B) requires claims

of appellate ineffectiveness to be filed within ninety days of the original court of appeals

decision affirming a conviction or an appellant must establish “good cause” for not filing the

application within ninety days. Rule 26(B) went into effect on July 1, 1993.

Despite the purported effective date of Rule 26(B), the Supreme Court of Ohio’s former

S. Ct. Prac. R. 11(2)(D)(1) divested the Ohio courts of appeals of jurisdiction to consider any

action once a notice of appeal was filed in the Supreme Court of Ohio. “After an appeal is _

perfected from a court of appeals to the Supreme Court, the court of appeals is divested of

jurisdiction...to rule_on_an application for reconsideration filed with the court of appeals

pursuant to Rule 26 of the Rules of Appellate Procedure... .”. (Emphasis added).

In Ohio v. Wogenstahl, 662 N.E.2d 16, 17 (1996), decided three years after Rule 26(B)’s

enactment, the Supreme Court of Ohio expressly held that former S. Ct. Prac. R. 11(2)(D)(1)

trumped Rule 26(B) and divested the courts of appeals of jurisdiction to entertain Rule 26(B)

applications. Because former S. Ct. Prac. R. II(2)(D)(1) specified that the courts of appeals

retained jurisdiction only to rule on applications for reconsideration as opposed to applications to

reopen, the supreme court held that the courts of appeals did not retain jurisdiction to rule upon

an application for reopening under Rule 26(B). Id.; see also Ohio v. Howe, 652 N.E.2d 193

(1995). It was only after Wogenstahl that the Supreme Court of Ohio corrected the obvious

conflict between Rule 26(B) and former S. Ct. Prac. R. 11(2)(D)(1). Therefore, Rule 26(B) was

not in effect until two years after Mr. White filed his application to reopen in the court of

appeals.

Because Ohio courts of appeals did not have jurisdiction to address claims of appellate

ineffectiveness until 1996, at the time Mr. White filed his application, the Rule 26(B) process for

litigating appellate ineffectiveness claims provided only a theoretical remedy. See Marino v.

Regan, 332 U.S. 561, 569-570 (1947). The Supreme Court of Ohio, through Rule 26(B), created

-_=

the iat remedy for raising appellate ineffectiveness claims, a delayed motion for

reconsideration filed with the courts of appeals that was part and parcel of the original direct

appeal of right. The Supreme Court of Ohio’s own rule deprived the appellate courts of the

jurisdiction they needed to entertain these appellate ineffectiveness claims. During this time

period, within which Mr. White’s case falls, Ohio did not provide appellants a reasonable

sieaineien to present their ineffectiveness claims. Thus, individuals like Mr. White, who had

been deprived of their right to the effective assistance of appellate counsel, had no opportunity to

be heard regarding those allegations. |

B. At the time of Mr. White’s Delayed Motion for Reconsideration was pending,

the Ohio Courts did not consistently apply the ninety day time provision

contained in Rule 26(B).

For the Warden to meet her burden of proof as to the affirmative defense of procedural

default, she must demonstrate that the state procedural rule is a “firmly established and regularly

followed state practice.” Ford v. Georgia, 498 U.S. 411, 423-424 (1991); Reynolds v. Berry, 146

F.3d 345, 347 (6th Cir. 1998). The Warden’s affirmative defense in the present case focuses

upon Rule 26(B). She alleges that Mr. White did not comply with the following time limitations

contained within the Rule: “An Application shall be filed in the court of appeals where the

appeal was decided within ninety days from the journalization of the appellate judgment unless

the appellant shows good cause for filing at a later time.” Ohio R. App. P. 26(B)(1).

The Rule contains two filing provisions: 1) the application must be filed within ninety

days or 2) the appellant must show “good cause” for the untimely filing. As will be

demonstrated herein, the Warden cannot meet her burden of proof because the state courts have

failed to consistently apply either filing provision.

Rule 26(B) is very concise, applications “shall be filed in the court of appeals where the

appeal was decided within ninety days . . .” or the appellant must show good cause. The

standard is very simple, easy to administer and not subject to conflicting interpretations. The

time limitation is mandatory unless the appellant can show good cause.

Despite the objective nature of the rule and its mandatory application, Ohio courts have

inconsistently applied this rule. In the following cases, the Ohio courts ignored the ninety day

time limitation and reached the merits of delayed applications without showing good cause

despite the fact that the applications were untimely. Ohio v. Smith, 640 N.E.2d 813 (1994)(five

years); Ohio v. Timmons, 640 N.E.2d 814 (1994)(ten years); Ohio v. Bonnell, 643 N.E.2d 108

(1994)(three years); Ohio v. Hamblin, 643 N.E.2d 545 (1994)(eight years); Ohio v. Hull, 643

N.E.2d 546 (1994)(three years); Ohio v. McKenzie, 664 N.E.2d 926 (1996)(four years); Ohio v.

Dumas, 663 N.E.2d 925 (1996)(four years); Ohio v. Doles, 665 N.E.2d 197 (1996)(two years);

Ohio v. Sabo, 666 N.E.2d 560 (1996)(ten years) and Ohio v. Jones, 667 N.E.2d 384 (1996)(five

years).

In numerous cases, Ohio courts disregarded the fact that applications were filed several

years outside the ninety day requirement. These holdings are to be contrasted with the aise in

which Ohio courts determined that the application was untimely because it was filed one day or

months outside the ninety day time period. Ohio v. Winstead, 658 N.E.2d 722 (1996)(one day);

Ohio v. Simpson, 666 N.E.2d 1118 (1996)(several days); Ohio v. Cobb, 643 N.E.2d 543 (1994)

(ninety-seven days); Ohio v. Ballard, 643 N.E.2d 1147 (1994) (ninety seven days); Ohio v.

Dever, 654 N.E.2d 1249 (1995) (five months); Ohio v. Whalen, 660 N.E.2d 1174 (1996) (nine

months); Ohio v. Peeples, 643 N.E.2d 1112 (1994) (nine months); Ohio v. Eads, 652 N.E.2d 999

(1995)(nine months); Ohio v. Chubb, 652 N.E.2d 709 (1995)(ten months); Ohio v. Houston, 652

N.E.2d 1018 (1995)(one year); Ohio v. Lura, 661 N.E.2d 1085 (1996)(one year).

The inconsistent application of the ninety day provision is best highlighted by two cases

decided by the Supreme Court of Ohio on the same day. In Ohio v. Winstead, 658 N.E.2d 722

(1996), the court determined that the filing of the motion one day beyond the ninety day

provision constituted an untimely filing. The same day, in Ohio v. Green, 658 N.E.2d 721

(1996), the court ignored the fact that an application was filed fourteen days beyond the Rule and

reviewed the merits of the issues presented.

The contradictory results demonstrate that the Ohio courts have been unable to

consistently apply the objective ninety day requirement of Rule 26(B). Thus, the ninety day |

requirement of Rule 26 cannot serve as an adequate and independent basis for a procedural

default because it is not a firmly established and regularly followed state practice.

[. At the time Mr. White’s Rule 26(B) Application was pending, Ohio courts

inconsistently applied the good cause exception to the ninety day rule

provision contained in Rule 26(B).

<— SREETRSINT RIS

Rule 26(B) grants appellate courts discretion to forgive a violation of the ninety day rule

but only if the appellant can demonstrate good cause. The cases cited in this subsection will

demonstrate that the Ohio courts have also applied the good cause provision in an inconsistent

manner. See White v. Schotten, 201 F.3d 743, 751, (2000). The inconsistency on which Mr.

White relies is not one where one appellant is determined to have proven good cause and another

appellant is determined not to have proven good cause. This type of inconsistency is to be

expected and warranted if the state courts are examining the facts unique to each case. Indeed, it

is a different type of inconsistency that renders the Rule inadequate. While the state courts

conclude in some cases that a particular fact can constitute good cause, in other cases the |

appellate courts conclude that the very same factor can never constitute good cause. These types

of inconsistent rulings render the Rule inadequate for federal habeas purposes.

The facts most frequently cited as the basis for good cause by untimely appellants during

the time of Mr. White’s application was the enactment of Rule 26(B) itself. Numerous

appellants complained that they could not be expected to comply with the time limits contained

in Rule 26(B) souls it had not been enacted when the appellate courts decided their cases.

Several Ohio courts found that the enactment of the Rule was good cause. Ohio v. White, 652

N.E.2d 1020 (1995); Ohio v. Spaulding, 643 N.E.2d 112 (1994); Ohio v. Peeples, 643 N.E.2d

1112 (1994). In other cases, the courts held that delayed applications could have been filed prior

to the enactment of Rule 26(B) pursuant to Ohio R. App. P. 14, and therefore, the enactment of

the Rule was not good cause. Ohio v. Reddick, 647 N.E.2d 784 (1995); Ohio v. Spisak, 652

N.E.2d 719 (1995); Ohio v. Wickline, 658 N.E.2d 1052 (1996); Ohio v. Williams, 659 N.E.2d

1253 (1996).

Pro se appellants during the relevant time period often cited to their ignorance of the law

and lack of access to legal material as good cause. At least one Ohio court determined that pro

se status constitutes good cause. Ohio v. Dillon, No. 725 1996 WL 467303 (Mont. Ct. App.

Aug. 15, 1996). Other courts rejected this argument. Ohio v. Thrower, 643 N.E.2d 1149 (1994);

State v. Witlicki, 658 N.E.2d 275 (1996).

Other appellants cited to their issues and that they had colorable merit. Some courts

adopted this reasoning as supporting good cause. Ohio v. Sparks, No. C-84-143 (Lucas Ct. App.

Feb. 11, 1997); Ohio v. Williams, 1995 WL 338613, No. 88-J-26 (Jefferson Ct. App. June 1,

1995); Ohio v. Flowers, 1998 WL 456453, No. C-92-337 (Lucas Ct. App. July 10, 1998). One

court excused the failure to comply with the ninety day provision because the application

claimed that appellate counsel was ineffective. Ohio v. Newlins, No. 87AP-222, 1993 WL

308390 (Franklin Ct. App. Aug. 5, 1993). If this were the proper test to determine “good cause,”

then all untimely applications would receive a merits review because the sole purpose of Rule

26(B) is to permit the litigation of appellate ineffectiveness claims.

Appellants often cited for good cause their imability to access their inal transcripts 10

identify the issues that were omitted from their direct appeals. Rule 26(B) mandates that the

relevant portions of the transcript be attached to delayed applications. In Ohio v. Everette, 658

N.E.2d 720 (1996), the court ruled that under certain circumstances “great difficulties in

obtaining a copy of the transcript could constitute good cause.” In other cases, great difficulty in

obtaining a transcript was not “good cause” if the issue could have been raised without access to

a transcript. Ohio v. Bell, 652 N.E.2d 191 (1995); Ohio v. Houston, 652 N.E.2d 1018 (1995).

Subsequently, the Supreme Court of Ohio ruled that if the relevant parts of the transcript were

not attached to the delayed application, then the application was procedurally barred. Qhio v.

MeNeill, 700 N.E.2d 613 (1998). Finally, the Supreme Court of Ohio ruled that the courts of

appeals are not required to provide an indigent appellant with a copy of his transcript to permit

compliance with the rule. Ohio v. Nickelson, 661 N.E.2d 168 (1996).

Some appellants cited as good cause the failure of their counsel to timely notify them of

their adverse decisions in the courts of appeals. Appellants reasoned that this lack of timely

notification precluded them from complying with the ninety day time period. Some Ohio courts

accepted this lack of timely notification as “good cause.” Ohio v. Everette, 658 N.E.2d 720

(1996); Ohio v. New, No. 94APA 10-1547 (Franklin Ct. App. Dec. 3, 1996).

McNeil! and Nickelson violate the constitution by reminding one of “the ‘age-old problem’ of

‘{p}roviding equal justice for poor and rich, weak and powerful alike.’” M.L.B. v. S.L.J., 519

U.S. 102, 110 (1996), citing to Griffin v. Illinois, 351 U.S. 12, 16 (1956).

Finally, some appellants during the relevant time period cited to the malfeasance or

nonfeasance of their Rule 26(B) counsel as good cause. Some Ohio courts under some

circumstances found that Rule 26(B) counsel’s ineffectiveness could establish good cause. Ohio

v. Bort, No. 96CA 006597 (Lorain Ct. App. Oct. 30, 1997). Other courts rejected the theory that

the ineffectiveness of Rule 26(B) counsel could ever constitute good cause. Ohio v. Pierce, 659

N.E.2d 1252 (1996); Ohio v. White, 647 N.E.2d 787 (1995); Ohio v. Williams, 659 N.E.2d 1253

(1996); Ohio v. Colwell, 660 N.E.2d 1173 (1996).

As demonstrated by the numerous appellate decisions above, the state courts have

unfettered discretion to pick and choose which cases they will accept for review. Indeed, some

Ohio appellate courts apply a standard under which “good cause” will never be found, others

employ a standard under which “good cause” will always be found, and still others ignore the

“good cause” requirement altogether and proceed instead to the actual merits of the applicant’s

claims.

California, like Ohio, had decreed an artificial ninety-day time period for reopening

appeals to assert new claims of error, subject to a “good cause” exception. See Morales _v.

Calderon, 85 F.3d 1387 gt" Cir. 1996). The Ninth Circuit found that there was no procedural bar

in federal habeas because at the time of Morales’ state court decision, because there were no

clear guidelines for determining when a petitioner could file his petition beyond the ninety-day

filing period. In addressing the “good cause” component, the court stated the following:

We must emphasize that the issue here is not whether the State is allowed to

invoke its rule irregularly for its own purposes. The question is whether a State

rule that is applied only randomly may preclude a federal court from entertaining

a petitioner’s federal claim on the merits. We conclude that the answer is “no.”

Morales, 85 F.3d at 1392.

The state courts of New Mexico have a procedural rule similar to Rule 26(B) in the sense

that it precludes review of a question not properly preserved unless the courts “exercise

discretion to consider fundamental rights that have been infringed without preservation of error.”

Gutierrez _v. Moriarty, 922 F.2d 1464, 1470 (10" Cir. 1991). In refusing to recognize New

Mexico’s rule as adequate, the Tenth Circuit cited to the fact that there were no cases articulating

the parameters within which New Mexico courts could exercise discretion. Id. at 1470 citing

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 233-34 (1969).

When faced with sporadic and inconsistent applications of state procedural rules, other

circuits have refused to apply a procedural bar to the applicant’s constitutional claims. King v.

Puckett, 1 F.3d 280, 283-84 (5" Cir. 1993); Smitia v. Black, 970 F.2d 1383, 1386-88 (5" Cir.

1992). Grubbs v. Delo, 948 F.2d 1459 (8" Cir. 1991); Delap v. Dugger, 890 F.2d 285, 300 (11"

Cir. 1989).

The Supreme Court of Ohio has never considered or provided direction to Ohio appellate

courts regarding the definition of “good cause.” Without that direction, the Ohio appellate courts

have inconsistently applied the “good cause” standard. Thus, the “good cause” component of

Rule 26(B) cannot serve as an adequate and independent basis for a procedural default because it

is not a firmly established and regularly followed state practice.

Because Ohio R. App. P. 26(B) is inadequate and has not been consistently applied by the

Ohio courts, it may not cause the procedural default of Mr. White’s claims. The Sixth Circuit

declined to fully address Mr. White’s arguments related to the adequacy of the Rule, and he

reasserts those arguments here. If the Rule itself is inadequate, then Mr. White need not assert

cause for the procedural default of his claims.

II. A CRIMINAL DEFENDANT ENJOYS THE RIGHT TO THE EFFECTIVE

| ASSISTANCE OF COUNSEL ON A DIRECT APPEAL OF RIGHT, AND THE

STATES ARE FREE TO STRUCTURE THE DIRECT APPEAL PROCESS AS

THEY SEE FIT.

A. This case does not present a question of great importance or scope worthy of

certiorari review.

The Sixth Circuit declined to address the adequacy of Rule 26(B) finding instead that

even if the rule were sufficiently adequate to invoke a procedural default of White's claims, he

could nevertheless establish cause for their default. And even though the Rule itself is

inadequate, one thing is certain, in Ohio, claims of appellate ineffectiveness must be raised on

direct appeal and are not cognizable in any form of post-conviction proceeding. Because those

claims may only be asserted in proceedings that are part of a first, direct appeal of right, they are

subject to the Sixth and Fourteenth Amendment guarantees that an appellant be afforded the right

to the effective assistance of counsel.

At the urging of the Ohio Attorney General, Ohio created a bifurcated direct appeal

process designed to address claims of error arising from a criminal trial as well as claims of

ineffective assistance of appellate counsel. Prior to 1992, claims of appellate ineffectiveness

were addressed in a variety of ways in Ohio. See Manning v. Alexander, 912 F.2d 878 (1990).

In 1992, the Supreme Court of Ohio decided Ohio v. Murnahan, 584 N.E.2d 1204 (1992), in

which the court “emphatically held” that claims of appellate ineffectiveness were not cognizable

in any form of post-conviction proceeding. See White v. Schotten, 201 F.3d 743, 752 (2000).

Rather, the court held, claims of appellate ineffectiveness must be decided in the context of the

direct appeal and be pursued through an Application to Reopen.

During the Murnahan proceedings in the Supreme Court of Ohio, the Ohio Attorney

General entered an appearance as a friend of the court and argued on behalf of the State of Ohio.

In the brief, the Ohio Attorney General vehemently argued that these claims of appellate

ineffectiveness could not be raised in post-conviction proceedings. (See Warden’s Amicus Brief

to the Supreme Court of Ohio, A-22 - A-40.) The attorney general argued that not only were

appellate ineffectiveness claims not cognizable in post-conviction, but they “must be presented

in the chain of direct appeal.” (Warden’s Amicus Brief, p.4, A-30.). The very basis of the Ohio

Attorney General’s argument was to protect Ohio’s interest in the finality of its criminal

judgments from federal habeas corpus intervention:

The Ohio Attorney General represents the State’s interests in collateral

attacks on criminal convictions which name as the respondent a state official,

such as the Warden of the correctional facility at which the petitioner is detained.

This includes all Ohio prisoners’ petitions for federal habeas corpus relief.

As explained herein, Ohio’s procedural rules for handling claims of

ineffective assistance of appellate counsel are important for determining the

procedural posture of the same allegations in federal habeas corpus. The decision

below indicates that at least some room for debate exists in Ohio as to the proper

state procedural vehicle for raising claims of appellate ineffectiveness. To the

extent Ohio procedural law is unclear, federal courts may hear such claims in the

first instance, despite the refusal of Ohio courts to have reviewed them. This

leads to a lack of respect for Ohio procedural requirements, both by federal

courts and prospective federal litigants. Litigants aiming for federal habeas

review have little incentive to obey Ohio procedural requirements, secure in the

knowledge that the merits of their claims will be addressed by federal courts

anyway.

(Amicus Brief, p.1, A-27,emphasis added.)

Based upon the attorney general’s argument, Applications for Reopening were made

“part of the chain of direct appeal” by the Supreme Court of Ohio, and since then, direct appeals

from criminal convictions in Ohio have been conducted in two parts. The first leg of the direct

appeal proceeds in the traditional sense commencing with a notice of appeal, proceeding then to

briefing, argument and written opinion by the reviewing court. Appellants may then seek

discretionary review in the Supreme Court of Ohio and ultimately with this Court. The criminal

conviction is not final, however, until the Ohio appellate court determines whether the individual

was afforded the effective assistance of appellate counsel. The filing of the application to reopen

renders the criminal conviction un-final until such time as the application to reopen is resolved.

See Foster v. Edwards, 165 F.2d 27 (6th Cir. 1998)(unpublished).

If the appellant claims that he was denied the effective assistance of appellate counsel, an

Application to Reopen pursuant to Ohio R. App. P. 26(B) may be filed in the appellate court

within ninety days of the original decision or, any time thereafter, if the applicant can establish

good cause for the delayed filing. The review process is controlled by the Ohio Rules of

Appellate Procedure, is filed under the original case number and is decided by the original panel

of appellate judges. The applicant may appeal an adverse decision, as a matter of right, to the

Supreme Court of Ohio.

Having succeeded in creating the direct appeal process now in place for the very purpose

of restricting habeas corpus review of Ohio cases, the Ohio Attorney General now complains to

the federal courts that Rule 26(B) is unfair and somehow deserving of constitutional intervention.

And rather than making this argument in the proper forum - the Ohio Legislature - the Ohio

Attorney General is now asking this Court to intervene in state matters, disregard the direct

appeal process Ohio has chosen to fashion, and force Ohio to create a review process that is not

required or even contemplated by the United States Constitution.

B. The Warden should not be permitted to have her cake and eat it too.

The doctrine of judicial estoppel protects the integrity of the judicial process by

preventing a party from taking a position inconsistent with a position successfully and

unequivocally asserted by the same party in a prior proceeding. United States v. Owen, 54 F.2d

271 (6th Cir. 1995). Courts have used a variety of metaphors to describe the doctrine,

characterizing it as a rule against "playing ‘fast and loose’ with the court,” “blowing hot and cold

as the occasion demands,” or “having one’s cake and eating it too.” Reynolds v. Comm’n of

Internal Revenue, 861 F.2d 469, 472-73 (6th Cir. 1988). All of those metaphors fit here. The

State’s analysis is less an attempt to present an issue of constitutional magnitude to this Court

than an attempt to rectify its own shortsighted, yet successful, attempt to change the structure of

Ohio’s review process, and it is done so only by blatantly misrepresenting to this Court the status

of Ohio law.

Unable to point to any binding Ohio authority supporting its position, Petitioner relies on

two miscellaneous dismissals from the Supreme Court of Ohio decided prior to the effective date

of Ohio R. App. P. 26(B). The Warden completely ignores the entire basis of the Murnahan

decision and instead cites two miscellaneous dismissals for the erroneous proposition that an

Application to Reopen is a post-conviction matter. See Ohio v. Robinson, 660 N.E.2d 472

(1996); Ohio v. Sproat, 656 N.E.2d 342 (1995). Aside from the fact that Robinson and Sproat

are miscellaneous dismissals that offer no guidance, and Murnahan is the seminal case governing

applications to reopen, later cases have further clarified that App.R. 26(B) proceedings are part

of the direct appeal process.

-In early 1996, when Robinson was issued, the treatment of appellate ineffectiveness

claims was a disaster due to conflicting rules that were still on the books. While the whole

purpose of Murnahan was to take appellate ineffectiveness claims out of Ohio’s post-conviction

process, an Ohio Supreme Court Practice Rule remained that divested the appellate courts of

jurisdiction to hear the claims. Former S. Ct. Prac. R. II(2)(D)(1). Thus, at the time of Robinson

and Sproat, litigants with appellate ineffectiveness claims were being turned away from the

appellate courts because the courts did not have jurisdiction and they were being turned away

——

from the trial courts because appellate ineffectiveness claims were no longer part of Ohio's post-

conviction process pursuant to Murnahan and App. R. 26(B). See Ohio v. Howe. 652 N.E.2d

193 (1995): Ohio v. Wogensthal, 662 N.E.2d 16 (1996).

Finally, in April of 1996, the Supreme Court of Ohio reaffirmed that appellate

ineffectiveness claims were not part of the post-conviction process. Former S. Ct. Prac. R.

11(2)(D)(1) was sinenided so that appellate courts would have jurisdiction to hear ineffective

assistance of appellate counsel claims. That process. according to the Supreme Court of Ohio

and the Sixth Circuit, is the continuation of a criminal defendant's first appeal of right.

In Ohio v. Gillard, 714 N.E.2d 400 (1999), the Supreme Court of Ohio recognized that

the App. R. 26(B) procedure was part of direct appeal. In Gillard, Ohio had moved the court to

set an execution date upon denial of Mr. Gillard’s App. R. 26(B) motion. The court denied the

state’s motion holding that Mr. Gillard was entitled to a stay of execution to permit him to pursue

his petition for writ of certiorari to this Court. Traditionally, the Supreme Court of Ohio has

granted stays of execution only to pursue a petition for certiorari after direct appeal is complete

and not after the indirect or collateral review is completed. If rule 26(B) were a post-conviction

matter, a stay would not have been granted. Additionally, the Supreme Court of Ohio has held

that counsel should be appointed to assist with the application to reopen pursuant to App. R.

26(B). Ohio v. Getsy, 721 N.E.2d 117 (1999) (case remanded for the appointment of counsel “to

represent appellant for purposes of an application for reopening.”).

Ohio has chosen to structure the direct appeal process in this manner, and as a matter of

comity, the Sixth Circuit respected Ohio’s authority to define the process by which direct appeals

are conducted. Far from creating a new rule of constitutional law, the Sixth Circuit properly

deferred to Ohio’s authority to structure the appellate review process as it sees fit. Nowhere in

the Sixth Circuit’s decision will this Court find any statement even vaguely approaching the

Petitioner's assertion that the Sixth Circuit has single handedly amended the Bill of Rights to

include a new and heretofore unrecognized constitutional right to the effective assistance of post-

conviction counsel.

This is a matter of state law on which the Supreme Court of Ohio has spoken, and

consistent with this Court’s mandate that federal courts respect state procedural rules, the Sixth

Circuit properly accepted Ohio’s definition of a direct appeal and accorded it the respect it is

due. Petitioner repeatedly cites to Coleman v. Thompson, 501 U.S. 722 (1991), in the hopes of

luring this Court into the belief that the Sixth Circuit has ignored this Court’s authority. But

White v. Schotten has nothing to do with post-conviction cases; therefore, it does not implicate

Coleman, let alone defy it.

Si. White vy. Schotten cannot conflict with the authority in other Circuits because

almost every other state addresses appellate ineffectiveness claims in post-

conviction proceedings.

White cannot possibly conflict with the authority of other Circuit courts because Ohio is

one of only two states in the union that treats claims of appellate ineffectiveness as part of the

direct appeal process Most states expressly deal with the claims as part of a collateral, post-

conviction proceeding: Ala. R. Crim. P. 32.2; Alaska R. Crim P. 12.72.020; Ariz. R. Crim. P.

32.1; Ark. R. Crim P. 37.1 and 37.2; Colo. R. Crim. P. 35; Del. R. Crim. P. 61; Haw. R. Penal P.

40; Idaho R. Crim. P. 19-4901; Ill. R. Crim. P. 5/122-1; Ind. R. Post-Conviction 1, § 9; lowa R.

Civ. P. 60-1506; Ky. R. Crim. P. 11.42; La. R. Crim. P. Art. 924; Me. 15 M.R.S.A. §2129(1)(A);

Md. Art. 27 § 645A Ann., Mass. R. Crim. P. 30; Mich. R. Crim. P. 6.502; Minn. Stat. § 590.05;

Miss. Stat. §99-39-1; Mo. R. Crim. P. 29.15; Mont. R. Crim. P. 46-21-105; Neb. R. Crim. P. 29-

3001; N.J. Court R. 3:22-1; N.D. stat 29-32.1-01; Okl. 22 Okl. St. Ann. § 1089; Or. ORS

138.510: Penn. 42 Pa. C.S. § 9541; R.Il. Gen. Laws §10-9.1-1: S.C. § 17-27-10: Tenn. Code.

Ann. § 40-30-201: Utah R. Civ. P. 65B: Vt. 13 V.S.A. § 7131: Va. R. Crim. P. § 8.01-654: Wis.

Stat. § 809.30; Wyo. Stat. §§ 7-14-101-108. A few states address the claims in habeas corpus

proceedings: Cal. 12 C.P.C. § 1475; Conn. R. Sup. Ct. P. 23-22: Ga. Stat. § 9-14-1: Kan. KSA

60-1507; Nev. N.R.S. §34-360; N.H. Title LV, Chpt. 534; N.M. R. Crim. P. 5-802: S.D. Codified

Laws § 21-27-1.1; Texas Ar. 11.071; Wash. R. App. P. 16.4; W. Va Code § 53-4A-1. New York

addresses the claim through a petition for writ of coram nobis, New_York v. Bachert, 509 N.E.2d

318 (1987), and North Carolina courts review the claim through a pleading that is styled a

“motion for appropriate relief.” N.C. Laws §15A-141]. Florida is the only other state that

accommodates appellate ineffectiveness claims in its rules of appellate procedure. Fla. R. App.

P. 9.140(j).

Were Ohio like most other states that specifically define their process for deciding claims

of appellate ineffectiveness as post-conviction matters, the Warden might be correct. But Ohio is

different. Because appellate ineffectiveness claims are reviewed in the chain of a direct appeal

of right, White _v. Schotten no more conflicts with these other circuits than it conflicts with

Coleman v. Thompson itself.

lil. CONCLUSION.

Ohio Rule of Appellate Procedure 26(B) is inadequate; therefore, it cannot serve as the

basis for a procedural default of Mr. White’s claims. In addition, in Ohio, claims of appellate

ineffectiveness lie within the exclusive province of the direct appeal courts. The structure of

Ohio’s direct appeal process is a matter best left to the discretion of the State of Ohio:

consequently, Petitioner presents no legitimate reason to review the Sixth Circuit's decision.

Respectfully submitted,

DAVID H. BODIKER

Ohio Public Defender

KORT GATTERDAM

Office of the Ohio Public Defender

8 East Long Street, 11" Floor

Columbus, Ohio 43215-2998

(614) 466-5394

COUNSEL FOR FREDERICK WHITE

#119642

No. 00-228

In the Supreme Court of the United States

MARGARET A. BAGLEY, WARDEN,

Petitioner,

-VS-

FREDERICK WHITE,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

APPENDIX TO

FREDERICK WHITE’S BRIEF IN OPPOSITION

TO THE WARDEN’S PETITION FOR WRIT OF CERTIORARI

DAVID H. BODIKER

Ohio Public Defender

KORT GATTERDAM

Assistant State Public Defender

Counsel of Record

J. JOSEPH BODINE, JR.

Assistant State Public Defender

Office of the Ohio Public Defender

8 East Long Street, 11" Floor

Columbus, Ohio 43215-2998

(614) 466-5394

COUNSEL FOR FREDERICK WHITE

Ohio R. App. P. 26

APP R 26 APPLICATION FOR RECONSIDERATION; APPLICATION FOR REOPENING

(A) Application for reconsideration

Application for reconsideration of any cause or motion submitted on appeal shall be

made in writing before the judgment or order of the court has been approved by the court and

filed by the court with the clerk for journalization or within ten days after the announcement of

the court's decision, whichever is the later. The filing of an application for reconsideration shall

not extend the time for filing a notice of appeal in the Supreme Court.

Parties opposing the application shall answer in writing within ten days after the filing of

the application. Copies of the application, brief, and opposing briefs shall be served in the

manner prescribed for the service and filing of briefs in the initial action. Oral argument of an

application for reconsideration shall not be permitted except at the request of the court.

(B) Application for reopening

(1) A defendant in a criminal case may apply for reopening of the appeal from the

judgment of conviction and sentence, based ona 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 applicant

shows vood cause for filing ata later ume.

(2) An application for reopening shall contain all of the following:

(a) The appellate case number in which reopening is sought and the trial court case

number or numbers from which the appeal was taken;

(b) A showing of good cause for untimely filing if the application is filed more than

ninety days after journalization of the appellate judgment.

previously were not considered on the merits in the case by any appellate court or that were

considered on an incomplete record because of appellate counsel's deficient representation;

(d) A sworn statement of the basis for the claim that appellate counsel's representation

was deficient with respect to the assignments of error or arguments raised pursuant to division

(B)(2)(c) of this rule and the manner in which the deficiency prejudicially affected the outcome

of the appeal, which may include citations to applicable authorities and references to the record;

‘(e) Any parts of the record available to the applicant and all supplemental affidavits upon

which the applicant relies.

A-1

(3) The applicant shall furnish an additional copy of the application to the clerk of the

court of appeals who shall serve it on the attorney for the prosecution. The attorney for the

prosecution, within thirty days from the filing of the application, may file and serve affidavits,

parts of the record, and a memorandum of law in opposition to the application.

(4) An application for reopening and an opposing memorandum shall not exceed ton

pages, exclusive of affidavits and parts of the record. Oral argument of an application for

reopening shall not be permitted except at the request of the court.

(5) An application for reopening shall be granted if there is a genuine issue as to whether

the applicant was deprived of the effective assistance of counsel on appeal.

(6) If the court denies the application, it shall state in the entry the reasons for denial. If

the court grants the application, it shall do both of the following:

(a) appoint counsel to represent the applicant if the applicant is indigent and not currently

represented;

(b) impose conditions, if any, necessary to preserve the status quo during pendency of the

reopened appeal.

The clerk shall serve notice of journalization of the entry on the parties and, if the

application is granted, on the clerk of the trial court.

(7) If the application is granted, the case shall proceed as on an initial appeal in

accordance with these rules except that the court may limit its review to those assignments of

error and arguments not previously considered. The time limits for preparation and transmission

of the record pursuant to > App.R. 9 and > 10 shall run from journalization of the entry granting

the application. The parties shall address in their briefs the claim that representation by prior

appellate counsel was deficient and that the applicant was prejudiced by that deficiency.

(8) If the court of appeals determines that an evidentiary hearing is necessary, the

evidentiary hearing may be conducted by the court or referred to a magistrate.

(9) If the court finds that the performance of appellate counsel was deficient and the

applicant was prejudiced by that deficiency, the court shall vacate its prior judgment and enter

the appropriate judgment. If the court does not so find, the court shall issue an order confirming

its prior judgment.

court of appeals, the application shall be ruled upon within forty-five days of its filing.

A-2

Former Rule I1(2)(D)(1) of the Supreme Court Rules of Practice:

Prac. R. I(2)(D)(1)

appeal is pertected from a court of appeals to the Supreme Court, the

f appeals is divested of jurisdiction, except to take action in aid of the

to rule on an application for reconsideration filed with the court of appeals

nt to Rule 26 of the Rules of Appellate Procedure, or to rule on a motion to

fy a conflict under Article IV, Section 3(B)(4) of the Ohio Constitution.

Current Rule 11(2)(D)(1) of the Supreme Court Rules of Practice:

Prac. R. 1(2)(D)(1):

appeal is perfected from a court of appeals to the Supreme Court, the

f appeals is divested of jurisdiction, except to take action in aid of the

|, to rule on an application timely filed with the court of appeals pursuant to

26 of the Rules of Appellate Procedure, or to rule on a motion to certify a

t under Article IV, Section 3(B)(4) of the Ohio Constitution.

EXHIBIT

i B

1996 WL 467303. State v. Dillon. (Ohio App 7 Dist 1996)

*467303 NOTICE: RULE 2 OF THE OHIO

SUPREME COURT RULES’ FOR THE

REPORTING OF OPINIONS IMPOSES

RESTRICTIONS AND LIMITATIONS ON THE

LSE OF UNPUBLISHED OPINIONS

STATE of Ohio, Plaintiff-Appellee.

Michael D. DILLON, Defendant-Appellant.

No. 725

Court of Appeals of Ohio, Seventh District, Monroe

County

Aug. 15, 1996

Application for Delayed Reconsideration

Richard A. Yoss, Prosecuting Attomey,

Woodsfield, for Plaintuff-Appellee

Michael D. Dillon, pro se

OPINION and JOURNAL ENTRY

PER CURIAM.

**1 On January 8, 1992, appellant was indicted on

two counts. In count one, appellant was charged with

aggravated burglary in violation of R.C. 2901.01. In

count two, appellant was charged with rape in

violation of R.C. 2907.02. Appellant entered pleas of

not guilty and not guilty by reason of insanity.

On January 15, 1992, appellant's counsel filed a

motion for examination, pursuant to R.C. 2945.37!

and 2945.39, to determine his competence to stand

trial, and his mental condition at the time of the

offenses alleged in the indictment. On January 27,

1992, the trial court ordered that appellant be

examined by the Forensic Diagnostic Center.

A report dated February 28, 1992. was prepared by

the Forensic Diagnostic Center's — clinical

psychologist. and filed with the court on March 4,

1992.

On March 13, 1992, appellant entered a change of

plea pursuant to a Crim.R. Il agreement whereby

appellee agreed to dismiss the charge of aggravated

burglary in exchange for appellant's plea of guilty to

the charge of rape. After the trial court accepted the

plea agreement. appellant was sentenced to an

indefinite term of not less then ten, nor more than

twenty-five years.

Page |

On March 25. 1994, a motion to allow a delaved

appeal was granted by this court’ On November 15

1995, oral argument was waived and the matter

submutted to the court

On January 12. 1996. this court athicmed the

judgment of the trial court

On May 24. 1996, appellant tiled this application

for delayed reconsideration as provided tor under

App.R. 26(B) and Rule 14(B)

In his application for delayed reconsideration,

appellant alleges ineffective assistance of counsel and

lists nine (9) separate assignments of error

1. Appellate counsel was ineffective when he failed

to present this assignment of error of inetfective

assistance of trial counsel, when he coerced the

appellant into a guilty plea, Knowing the appellant

was under the influence of antipsychotic drugs, and

violated his due process clause and denied him a fair

trial and violated his 6th and 14th Amendments to the

United States Constitution of America

2. Appellate counsel was ineffective when he never

raised abuse and discretion of trial judge for not

recusing himself from the bench when he had

Parkinson Disease, and he was unfit to serve as judge,

and violated this appellant's due process and his right

to a fair trial, and appellate counsel violated the

appellant's Sixth Amendment Constitutional right for

failure to raise this error.

3. Appellate counsel was ineffective when he

refused to raise the issue that the appellant was under

the influence of drugs at the time of his guilty plea, in

which he was coerced by his trial counsel to give the

plea of guilty, which he did not know what he was

doing at the time because of the antipsychouc drugs

they had him on, violated his due process and his

Sixth Amendment of the United States Constitution of

America.

4. Appellate counsel was ineffective when he failed

to raise ineffective assistance of mal counsel, for

failure to object when trial court refused to hold a

competency hearing under Crim.R. II, in violation of

R.C. 2945.37(A). denied him his Fifth, Sixth and

Fourteenth Amendment of the United States

Constitution of America, and Artcle [. Section 10

and 16 of the Ohio Constitution.

**2 5. Appellate counsel was ineffective when he

raised the three assignments of error as separate

A-4

1996 WL 467303, State v. Dillon, (Ohio App. 7 Dist. 1996)

issues they all involved the same error and were

improperly argued. and demied the appellant effective .

assistance of appellate counsel, denied him his Sixth

Amendment of the United States Constitunon of

America, and demed him his due process.

6. Appellate counsel was ineffective when he

refused to raise ineffective assistance of trial counsel

for failure to investigate into this case when their was

no evidence that appellant was the perpetrator who

did the robbery and rape. he was forced to plead

guilty because of tral counsel's ineffectiveness,

violated his Fifth, Sixth, and Fourteenth Amendment

of the United States Constitution of America, Article

I. Section 10 and 16 of the Ohio Constitution.

7. Appellant was prejudiced by and through the

ineffective assistance of appellate counsel for not

presenting all the issues and the main errors that

occurred at trial, and refusing to bring these

constitutional errors in question, to this honorable

court of appeals when he was made aware of these

errors by the appellant, and had informed him of

them, violated his Sixth Amendment of the United

States Constitution of America.

8. Appellate counsel was ineffective when he

improperly argued that the appellant was not given a

competency hearing under Crim.R. 11 that violated

the appellant's due process and his Sixth Amendment

of the United States Constitution of America which

denied the appellant of effective assistance of

appellate counsel.

9. Appellate counse! was ineffective when he failed

to raise ineffective assistance of trial counsel, which

denied the appellant of his Sixth Amendment that

were assigned to his case during trial procedures

because they had conflict of interest and prejudice

towards the appellant, denied him a fair trial, in

violation of his Sixth Amendment of the United State

Constitution of America.

In appellant's original appeal to this court, appellant

alleged three assignments of error, to-wit:

1. The appellant was denied due process of law as

guaranteed by Article I, Sec. 16 of the Ohio

Constitution and the Fourteenth Amendment of the

United States Constitution when the mal court failed

to hold a competency hearing.

2. The appellant was denied his mght to the effective

assistance of counsel as guaranteed by Article I. Sec.

10 of the Ohio Constitution and the Sixth Amendment

>. ’

Page 2

to the United States Constitution when his counsel

failed to request a competency hearing. failed to

explore a sanity defense. and failed to conduct a

reasonable investigation or detense.

3. The appellant was demed due process of law as

guaranteed by the Article I. See. 16 of the Ohiw

Constituuon and the Fourteenth Amendment to the

United States Constitunon as the proceedinys

resulting in his conviction were fundamentally untair

Appellant's assignments of error and claim of

ineffective assistance of counsel are without merit.

**3 The relevant case on this issue is that of State

ve Murnahan (1992), 63 Ohio St.3d 60. where, at

paragraph three of the syllabus, the court stated:

“Where the time period for reconsideration in the

court of appeals and direct appeal to the Supreme

Court has expired, a delayed claim of ineffective

assistance of appellate counsel must first be brought

in an application for delayed reconsideration in the

court of appeals where the alleged error took place,

pursuant to App.R. 26 and 14(B), and if delayed

reconsideration is denied then the detendant may

file for delayed appeal in the supreme court,

pursuant to section 8, Rule II of the Rules of

Practice of the Supreme Court.”

The applicable appellate rule in this case is that of

App.R. 26 titled "Application for reconsideration,

application for reopening.”

"(B) Application for reopening.

"(1) 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 jourmalization of the appellate

judgment waless the applicant shows good cause for

filing at a later time. (Emphasis added).

"(2) An application for reopening shall contain all

of the following:

“2 & @

"(C) One or more assignments of error or arguments

in support of assignments of error that previously

were not considered on the merits in the case by

any appellate court or that were considered on an

1996 WL 467303. State v Dillon, (Ohio App 7 Dist. 1996)

incomplete record because of appellate counsel's

deticient representation. (Emphasis added)

"(S) An application for reopening shall be granted i

there iy genuine issue as to whether the applicant

was deprived of the effective assistance of counsel

on appeal.”

Appellate Rule 14(B), which states "Enlargement or

reduction of time”, says:

“For good cause shown, the court, upon motion,

may enlarge or reduce the time prescribed by these

rules or by its order for doing any act. or may

permit an act to be done after the expiration of the

prescribed time. The court may not enlarge or

reduce the time for filing a notice of appeal or a

motion to certify pursuant to App.R. 25.

Enlargement of time to file an application to

reconsider pursuant to App.R. 26(A) shall not be

granted except on a showing of extraordinary

circumstances.”

Thus, the threshold question is, did appellant show

good cause for filing his Rule 26(B) Application for

Delayed Reconsideration more than 90 days after the

journalization of the appellate decision which

occurred on January 12, 1996? See State v. Wickline

(1996), 74 Ohio St.3d 369.

It would seem that appellant has met the good cause

standard for filing over ninety days after the

journalization of the appellant judgment in that

appellant was a layman in filing his application for

delayed reconsideration pro se. From the time of the

January 12th date at which this court affirmed the

judgment of the trial court until the filing of the

application for delayed reconsideration we are

looking at approximately 133 days. Allowing for

time in the mail and notification of the defendant-

appellant of his denial of his original appeal it would

not seem unreasonable to allow the extra period to

file this instant action.

**4 Accepting that appellant has shown good cause

for his delay in filing for reconsideration, appellant

must still bear the burden of establishing a “colorable

claim” of ineffective assistance of counsel as required

by App.R. 26(B)(5) and that his claims are not barred

by res judicata.

The standard of review to be applied when

assessing a defense request for reopening of appeal

Pave 3

ave 3

under AppR 2NBy5) ts that of Sereckland 1

Washington (1984), 466 US. 668 and Srire 1

Bradley (1989), 42 Ohio St.3d 136 See also the

recent case of State + Revd (1996), 74 Ohio St 3d

334

The SericAland standard tor ineffective assistance ot

counsel 1s that 2 detendant must demonstrate such

serious errors of counsel that a defendant was

prejudiced and. but for these errors, there was a

reasonable probability that the result of the tral

would have been different. A reasonable probability

is a probability sufficient to undermine confidence in

the outcome. Therefore, to establish ineffective

assistance of counsel, a defendant must show (1)

deficient performance of counsel and (2) resulting

prejudice to the detendant.

Also, appellant must bear the burden of showing

that his claims are not barred by the doctrine of res

‘judicata. Under the doctrine of res judicata. a final

judgment of conviction bars a convicted defendant

who was represented by counsel from raising and

litigating in any proceedings except an appeal from

that judgment, any defense or any claimed lack of due

process that was raised or could have been raised by

the defendant at tral, which resulted in that judgment

of conviction or on an appeal from that judgment

See State v Perry (1967), 10 Ohio St.2d 175, 176,

paragraph nine of the syllabus.

Appellant's assignments of error all basically

involve the following allegations:

1. That appellant was coerced into entering the

guilty plea by his attorney when his attorney told him

he would only receive a four year sentence and be

released in nwo to two and one-half years;

2. That he was under the influence of antu-psychotic

drugs at the time of the plea being entered,

3. That the trial judge should have recused himself

since he had Parkinson's Disease;

4. That the trial court refused to hold a competency

heanng;

5. That his attomey failed to investigate the case

and there was no evidence that appellant was the

perpetrator:

6. That his appellate atiomey improperly argued the

three original assignments of error in his first appeal.

A-6

1996 WL 467303, State ¥ Dillon, (Ohio App. 7 Dist. 1996)

7. That there was a conflict of interest by his first

attomey (who had himself removed from the case)

who was a county judge and had signed appellant's

arrest Warrant, search warrant and set his bail.

In appellant's assignments of error one and two

Where appellant alleges that he was coerced into

entering the guilty plea and under the intluence of

anti-psychotic druys at the time of the plea. those

arguments are res judicata. Clearly, both of those

arguments could have been raised on his original

appeal to this court.

**5 Both of those assignments of error also fail

under the Serickland standard in that this court in its

judgment and opinion of January 12, 1996 stated at

page 4:

"In the present case, the record indicates that the

trial court satisfied itself that appellant understood

the nature of the charges against him and that he

was informed as to the maximum penalties

involved. (Tr. 4-7). The record further indicates

that appellant acknowledged that he did understand

the charges and penalties involved. (Tr. 4-7).

"In addition, the record indicates that Dr.

Karpawich's evaluation was comprehensive. Dr.

Karpawich's report discloses that appellant

understood his rights and the nature of the

proceedings against him.”

Thus, appellant has failed to show that had these

issues been raised in his appeal that there was a

reasonable probability that the result of the trial

would have been different.

In appellant's assignment of error 3 he alleges that

the trial judge should have recused himself since he

had Parkinson's Disease. Appellant has submitted no

evidence and there is no evidence that Parkinson's

Disease is a reason to recuse oneself. Parkinson's

Disease is a nervous disorder and does not affect

reasoning ability. In appellant's application to this

court his Exhibit H was a letter from the Disciplinary

Counsel of the Supreme Court of Ohio. In paragraph

2 of that report it states:

“The evidence in this matter does not suggest that

Judge Burkhart is not capable of continuing to

preside on the bench. While Judge Burkhart may

suffer from Parkinson's Disease. it does not appear

that the illness has affected his ability to review

cases coming before him and make competent

determinations pertaining to said cases.”

Page 4

Hence. the fact that the trial court judge had

Parkinson's Disease has not been shown by the

appellant to constitute prejudice to the defendant.

In assignment of error 4. the appellant alleges that

the trial court had refused to hold a competency

hearing and that his trial counsel was ineffective for

failing to object to this demial of a competency

hearing. This assignment of error is res judicata in

that it was raised in assignment of error | at the

appellant's original appeal to this court and fully

addressed by this court. This court, in its January 12,

1996 decision at page 5 stated:

"The record herein reveals that appellant's plea was

made knowingly, intelligently and voluntarily.

Further, the record herein fails to reveal indicia of

appellant's incompetency. As such, we find that

appellant's first assignment of error is without

merit.”

In appellant's assignment of error 5 appellant

alleges that his attomey failed to investigate the case

and there was no evidence that appellant was the

perpetrator. This assignment of error is also res

judicata. Appellant's second assignment of error in

his original appeal to this court stated in part: "* * *

and failed to conduct a reasonable investigation or

defense.” Appellant's allegation that his trial court

counsel failed to conduct a reasonable investigation

into this case was reviewed by this court under the

Strickland standard and this court found that

assignment to be without merit. At page 6 of the

appeal from the Common Pleas Court case, this court

stated in part: “ * * * there is no indication from a

review of the record that appellant was prejudiced by

any action or inaction of counsel.”

**6. In appellant's assignment of error 6 appellant

argues that appellate counsel improperly argued the

three original assignments of error on his first appeal.

This assignment of error is without merit and fails

under the Strickland standard. There is no evidence

that this method of argument by his appellate counsel

was deficient. There was also no evidence that had

his attorney argued the three assignments of error

together the result would have been different. Also.

this court addressed each of these assignments of

error on appellant's original appeal.

In his last allegation, appellant alleges that there

was a conflict of interest by his first assigned attomey

(who had himself removed from the case) who was 2

county judge and had signed appellant's arrest

A-7

1996 WL 467303. State v. Dillon. (Ohio App. 7 Dist. 1996)

warrant, search warrant and set his bail. This issue ts

also res judicata in that it could have been raised in»

his first appeal as of right to this court An

independent review of this issue indicates that

appellant has not shown any specific instances where

any acuon or inaction of his original court appointed

attomey was deficient in any manner so as to

prejudice the defendant-appellant in his original trial

Clearly there was a conflict of interest (this was

admitted by the original attomey, see appellant's

Exhibit 1) but there is no indication that this conflict

of interest resulted in any resulting prejudice to the

defendant. Appellant's original attomey took extra

precautions to insure that appellant would not be

prejudiced until a new attorney could be appointed

Page Ss

(See appellant's Exhibit §)

}

Although appellant has seemingly met his burden of

showing good cause for delaving filing of this Rule

26(B) Application for Delaved Reconsideration, he

has not met the requirements of establishing a

“colorable claim” of ineffective assistance of counsel

Also. many of his arguments in this case were argued

on direct appeal and are res sudicata

This Applicanon tor Delayed Reconsideration ts

denied.

O'NEILL. P.J.. and DONOFRIO and COX, JJ.,

coneur

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JCURNALIZED

i Feb 12 E97

A-<40

oo Cessete AOTA-10

caw”

JOURNALIZED

ee Fe3 12 97

g Cassete OF A-11

Not Repomed in N.E.2

(Cite as: 1995 WL 338613 (Ohio App. 7 Dist.))

NOTICE: RULE 2 OF THE OHIO SUPREME

COURT RULES FOR THE REPORTING OF

OPINIONS

IMPOSES RESTRICTIONS AND

LIMITATIONS ON THE USE OF

UNPUSBLISKED OPINIONS.

STATE of Ohio, Plainciff-Appellee,

Samuel WILLIAMS, iiitint ancl:

$8-J-26.

Coun of Appeals of Ohio, Jefferson County.

| Juce !, 1995.

Criminal Appeal from Common Pleas Court

Case No. 87-CR-70. Reversed and Remanded.

Steptean M. Stern, Pros Aty.. Debdra

Romantic-Boros, Asst. Pro Anv., Steudeaville,

for pia:ntif-appelles.

James Kura. Ohio Public Defender, Kort

Gamerdcam, Asst. State Pudlic Defender, Obio

Public Defender Com’n. Coiumbus, for

erendant-2ppellant.

OPINION

DONOFRIO, Judge.

"1 This matter was previously before this

cour on direct appeal. On July 3, 1990, this

cour: entered its affirmance of a jury verdic:

wherein defendant-appellant, Samuel

Williams, was convicted of aggravated murder

following a tral in the Jefferson County

Common Pleas Cour in June of 1988. The

; Same amorsevs which handled the cial and

che previous appeal thea filed an appeal with

che Obio Supreme Cour. The Supreme Court

Cismissed the appeal on December 19, 1990.

Oa Oczober 7, 1992, appellant. by and

chrough crew counse!, filed ao anpiication for

Celavec reconsideration based upon the Ohio

Suprexe Coum’s decisios in Ste v.

Muss2b (1992), 63 Obio St.3d 60.

: Muszaban permits a deiaved claim of

sctive assistance of appeilace counse!. The

ine ter

were

Oasis Of tat applicuicn was ascellace

cousse!’s faslure to aSSIEQ 2S esTor ceria

io ie jury defore es sali consices a lesser

wciuced offerse. 2 viclauen of Get pegs 2

Tbomas (1988), +0 Ohio Si.3d

U.S. cerioran dened (1989), 393 U.S. 56.

Tbe Bolding in Thomas was arcrouncd

subsecueat to appellant's cial. but in ime to

raise the issue on appeal. ohh counse!

did not raise the issue in appetlant’s Ors

appeal.

Tbe issue raised in this appeal cestess on

two instructions to the jury regarding the

lesser included offense of murder. The firs:

Questioned instrucuon was given before the

jury entered deliberations. The second

questioned instruction was gives the morning

preceding the jury's second dav of

Geliberations when the tial coun gave

amplified instructions as to bow the jury

should corsidez the lesser included offezse of

murcer.

In appellant’s first assignmeat of error, be

conteads:

“Toe trial cour erred in instructing the jury

thar they must -acquit appellan: of

aggravated murder before they could

consider the lesser included offease of

mourde:. Said exror deprived appellant of his

Ohio and United States constitutional righss

to due process of law.”

In appeilant’s second assignment of esror, he

contends:

“Appellant was deprived of bis nght io the

erective assistance of mal and acpellae

coussel. guaranteed by the Sixth and

Fouressth Asesdmeas to the United

States Constiruuon. and Anicle I, Seccon

Tez of the Obio Consiimtion whea bis mal

couasel failed to object to an acquinal Asst

instruction and che same counse! on appeal

tailed to raise the accuimal first issue.

Sicce iis case is being coasidered by us

pursuamt to State v. Murs2ban. supr2. we

Susi resimct our analysis to Wat porioa of

apeeilant’s second assigzmezt of error which

Copr. = West 1998 No pone po, Orig. U.S. Gow. Works

Not Reponed uo N.E.2d

(Cite as: 1993 WL 338613, *1 (Otio App. 7 Dist.))

claims 2 ist nc Of effective assistance of

appetlace counse!. As sucs. we firsi

assigumest of error is overruied.

Wis ce foregoing is cisd. ester: bv te

cal coun as claised Ov acpeilzs: sust de

suc3 tar previous appellate coucse! sdould

have sused it in the orginal appeal of this

aczion. Further, counse!’s failure to do so mus

bave resulted in prejudice to the 2opeUant.

We thus begin with first cetermining if the

LOSLTUCUONS Al issue were in fac: estor.

°2 Io State v. Thomas, supre. the Ohio

Supreme Cour refered to inscucdons

wherein a jury is told tha they aust

unanimously find a deveadant not guuty of an

Ofiease berore considering a lesser included

Offense as an “acquittal first” instruciion. The

Supreme Cour then indicated in Thomas, at

219-220. wat:

vane. We vee Ge “satin ie

instruction approved by the court of anpeals

be:ow because sucd an insmuction

scroacses on the province of we jury to

decide questions of fact and to armve af a

vercict based on all the evidence before it

asd on all the various ofteases on which it

has bee= properly instrucied.

“Tse defeadant’s mght to have te jury

instrucz:ed on a lesser included offecse is

funcamestal to providing defendant with a

fair tral. ="" Although che risk of coerced

decisions may be presexnt in anv jury

Ceiibesation, “"" the ‘acquinal first’

instruction exacerbates suc nsk.°

Despite its holding in Thomas, the Supreme

Cour opted not to reverse the conviczion of

tbe dezesdant in that paricular case. The

insiruction in question in the Thomas ase

re2acs:

“If vou fiod that The State has proven

Ddeworc 2 reasonable doubt ai] of we

essexti2i elements of the comme of

aggravated murder, then vour verdic: cust

be hac che Defeadacte is guilty of

aggravated murder; asd vou will cot

sider the lesser offease.

“However. if vou find dat Tre Stare has

Tailed to prove bevond 2 reasonabie doudt

the elexcent of prior calculation and design.

(es vour verdic: musi be tha the

DeZescanr is act cult of

"You will tes proceed wits your

ei:berazions acd decide whether The Siate

bas proves devoce 3 ceascaable doubt 2! of

the essexual eleesis of the lesser crise of

murces.”* Siate v. Taomas, supra. at 229

Tae Supreme Cour found thar the abdove

imsiucuon did oot expressly require a

unanimous acquimal on the charged crime

before the jury was permimed to consider the

lesser tocluded offezse. The Suorexe Coun

indicated tbat this instruction addresses

possible disagreement by the jury on an

element of the came and a corespecding

inability io reach a verdic: of aggravated

courder.

The Supreme Coun weat on to sizte thar

this instruction hes cegligible ccexcive

potestial because it speaks to the jury's

inabuity to find, whether unarimously or sot,

cemain element of the greater offease. The

court went on to afiirm the conviccoa of

aggravated murder while stressing that a

bemer icstruction would have beez to

incorporate the “inability to agree” language

adopted by the court in its opinion.

Toe tial court’s instructions that are dirst

questioned in the preseat case are as follows:

“Finally vou may find that the Deveadzar is

not guilty of both the charge of aggravated

murder and the specification. Any of these

verdicts reached by your body mus be

unanimous.

“If vou find that the State bas failed to prove

each and every element of the crine of

aggravated murder as | have instructed vou.

vou wiil then recura a verdict of not guilty

to that charge. At this point vou will thea

continue (to delibecare and determine

whecher or not the Defendant is guilty of the

lessor (sic.) included charge of curder:.* (Tr.

760)

"3 Is we presezt case, appellee. Sze of

Obio. conteads that these jury isizccciocs

gives amer tial did sot expressly require a

unammous “not guilty” verdic: defore

Copr. © West 1998 No Claim jo, Orig. U.S. Govt. Works

A-13

Not Reponed in N.E.2d

(Cite as: 1995 WL 338613, *3 (Ohio App. 7 Dist.))

corsideration of the lesser: included offense.

Appeilee conteads chat hese wostruc::ons were

very sizular io whe insiruciiogs given in the

Taome2s case. which were acproved by the

Suprese Cour.

We agree with appellee sta dese

lasmucuoes are very sicuar to te Thomas

inscucnons. Ln reading both inscucuons, they

are very close in wording and wn bow we would

untespret thes. According te Thoras, bow are

ceptaole. Appellant emphasizes thar the

paragraph pnor to the first iscuczion refers

to che fac: chat “Any of these verdiczs reached

by vour body musi be unanimous.” This

refercacs was to several possible verdicts

refezred <o prior to the instruction in question.

We feel that this instruction whea re2d in

total with all of che other instructions given

ment afer the tmial, as in Thomas. did not

expressiv require a wuganimous acauital

before considering the lesser included offease.

A review of this courm’s journal estry of

Novemoer 135, 1992 permiming 2opellant’s

application for delaved ecozsicerarion

indicates that when this first instuction is

read in total it does not create sudstanual

grounds for <elief.

“If vou find that the State has failed to prove

each and every element of the came of

aggravated murder as I have insiruczed vou,

vou will then return a verdcic: of cot guilty

to that coarge. At this point vou will then

continue to. deliberate and decermine

whether or not the Defeadant is guilty of the

lessor (sic.) included charge of murder.° (Tr.

760)

As in Thomas, this isiruction has

“sezlig:dle coercive potential” because it

spe2xs io the jury’s inability :o ficd. whether

unacimousiv or not, all elemeas of the

greater offease.

We are not persuaded that this :nsiruction,

whic was given before the juw began

Celioerztions. unculy prejudiced the arpellact.

Tous. we co pot find prejudicial eect with

Wis instruction although a bdexer issizuction

would Save bees to mcorporate sSe “ixabilicy

70 agree language” that Thomas adopted.

Copr. = West 1998 No Claim to Ong. U.S. Gow. Works

Aas

Page 3

Evea choueh che ussirecuos sav bave bees

scmewhbat cocfusicg and acbicuous. as is

Thomas. it is Our finding that ~tes read as 2

whole with the balance of insSuczioas 1 ts cox

-preiucicial. Therefore. tral couase! was co:

ineffective ic faiicg to cbject to nt. Furte:,

wefiecuve assis:acce of appellate course! did

pot occur bv appellate cousse! fading to

quesuion ths insimuction on appeal.

The second instrucuon af issue was given o2

the morning of the second dav of de!iderauocs

after the jury was unable to reach a verdic.

The coum unscucied the jury tha:

~e"" You are really into a sitvation of just

detesmining in accordance with te

instrucuonms you received on rezsonabic

doubt as to whether or not the Ste proved

its case bevonod a reason able (sic.) dovdt

against tbe defeadanr. Acd your

possibilities are be is guilty of 2¢eravaied

mourder. if vou don’t agree on that and you

are unanimous in that, thev (sic.) vou cas

decide if he is guilty of murder. If vou agce

that he is, vou return a verdic: of suulty of

murder. If you don’t think he is suily of

that and you are unanimous, return the two

verdicts of not guilty.” (Tr. 782)

"4 Appellee asserts that the second

instruction can be read to require a

unanimous “guilty” verdict or a ucanimous

indecision but does not require a unanimous

“not guilty” verdict. We disagres.

We find that the second instruction is a

violation of the acquittal first prohibition as

set out in Thomas. Prior to the second dav of

deliberadon, the mial coum gave these

amplified instructions on its own. In

appellant’s initial appeal, this cour indicasd

that amplified instructions are frowned upon.

Part of che reason for this is that they cay

sometimes be taken out of context or unduly

exsohasized.

This instruction clearly acd = expressiv

required a unanimous oot guilty verdic: oner

to deliberating on the lesser incluced ofrezse

as protibited by the Supreme Cour’s late:

reieased decision in Thomas.

A-14

Not Reponed in N.E.2d

(Cite as: 1993 WL 338613, °4 (Obio App. 7 Dist.))

We must cow consider wherbe: the improper

jury tastmuczion «would $=bave required a

reversal of appe!lant’s convicuco if inually

Drouga up oc appeal. As previousiv stated, we

find ubar chs instruction gives bv the mal

coum expressiv recuired 2 wucacimous

acauimal oo the charge of agecavaied surdes

bezore we jury was permuted ic celiberate on

the lesser included offezse of surde-.

Pursuant to the holding in Taoras. supra, and

in accordance with the reasonicg of the Second

Discic:’s case of State v. Shaw (1990), 65 Ohio

App.5d 821. such an msqductec constitutes

prejudic:al exror and therefore warcznts a

reversal. It has been stated tha, “°°*

ordicariv it is prejudicial exror to give m

instrucuon which missiates te law **".” §

Obio Jurisprudeace 3d (1978) 20-. Appellate

Review, Section 646.

Appeitlant contends that anoeilate course!

was inesiective in failing to case de issue of

ineffective assistance of tnal counse! and in

failing to raise the issue of the exroceous jury

instruction on appeal. Because whe cecision in

Thomas was not released until subsequent to

the trial of appellant, inefiectivesess of trial

counsel is mot a meritorious issue. However,

appellate counsel was wefieczive in failing to

raise the second jury instruction 2s an issue on

appeal.

Thomas was decided by the Ohio Supreme

Court on December 30, 1988. Appellant’s

conviction was journalized June 22, 1988.

Notice of appeal was filed July 20, 1988. Due

to che leagth of the transcript, it was not filed

until May 31, 1989. Appellant received

several exteasions to file bis bref and

eveatually fled same on October 24, 1989.

Appetles riled its brief on Novexder 22, 1989.

Oral argument was heard Apri 17, 1990. This

court's opinion was released July 3, 1990.

As C23 be seca. appellate coucse! bad ampie

time <o become aware of the Thomas decision

and its :spplications. Failure to raise error in

regar¢ :0 Ge second jury issiruction was

inetTective assis:ance of appellate counsel char

vesulteé in prejudice to aopellact. See

Stncklacsc v. Wasdington (1$8-), -66 U-S.

668. T=:s ocussion by appellate counsel

Page

affected the result of appelant’s firs: apeal.

Therefore, appellant’s second assign==: of

exror is with merit.

*S For the foregoing reasocs, the juég==

of the mal court is reversed and this couse

recaanded for furber proceeding cocsis=z:

wit this opimion

O'NEILL, P.J., concurs.

COX, J., concurs.

END OF DOCUMENT

Copr. * Wes: 1998 No aes Ong U.S. Gow. Works

p18

1998 WL 456453. State v. Flowers. (Ohio App. 6 Dist. 1998)

*456453 NOTICE: RULE 2 OF THE OFIIO

SUPREME COURT RULES FOR THE REPORTING

OF OPINIONS IMPOSES RESTRICTIONS AND

LIMITATIONS ON THE USE OF UNPUBLISHED

OPINIONS.

STATE of Ohio Appellee

Marlon FLOWERS Appellant

No. L-92-337.

Court of Appeals of Ohio. Sixth District. Lucas County.

July 10, 1998.

Julia R. Bates, prosecuting attomey. and Brenda

Majdalani. for appellee.

Spiros Cocoves, for appellant.

OPINION AND JUDGMENT ENTRY

RESNICK, J.

**1 This case is before the court following our May 27,

1997 decision which granted appellant's application for

reopening, pursuant to App -R. 26(B). based upon a claim

of ineffective assistance of appellate counsel on direct

appeal.

The pertinent facts are as follows. On September 9,

1991, appellant, Marlon Trent Flowers, was indicted on

one count of felonious assault with a firearm and physical

harm specification. The case was dismissed on October 7,

1991. During this time, appellant was being held in jail

on the charge of drug abuse (case number CR91-6459).

On October 17, 1991, appellant was sentenced to one year

in prison for the drug abuse charge. He was granted fifty-

one days credit for time served.

While serving his sentence for drug abuse on January

13, 1992, appellant was again indicted for felonious

assault with a firearm and physical harm specification.

The indictment was for the same offense appellant was

indicted for in September 1991. Appellant was arrested

for the offense on May 11, 1992. A trial was scheduled

for June 16, 1992. On June 16, 1992, the trial date was

continued to June 23, 1992. On June 23, 1992, the trial

date was once again continued to July 14, 1992. On July

9, 1992, the trial date was continued for the last time until

August 12; 1992. On August 13. 1992. a jury found

appellant guilty as charged. He was sentenced to prison

for not less than seven nor more than fifteen years in

prison.

Pursuant to R.C. 2945.71(C). a person against whom a

charge of felony is pending. such as felonious assault.

shall be brought to trial within nwo hundred seventy days

ppv rivh Wes

sup 2000 No claim to original U.S. Govt. works

Pave |

after his arrest. Each das the accused 1s held in

of bail on the pending charge counts as three Cass |

purposes of the speedy trial computation RC

2945.71(E)

The issue before this court is whether or not appellant

was brought to trial within two hundred seventy days in

compliance with R.C. 2945.71. Appellant was initia

indicted tor felonious assault on September 9. 1991 The

charge was dismissed on October 7. 1991. That period

time. twenty-eight days. is chargeable to the state. States

Bonuarrigo (1980). 62 Ohio St.2d 7. 402 N.E.2d 55

From October 7. 1991 until his reindictment on Januar,

13, 1992. ninety-eight days elapsed. This tume ts not

counted for purposes of R.C. 2945.71 as the charge of!

felonious assault was not pending On May 11. 199°

appellant was arrested and placed in custody tor [he

charge of felonious assault. At that point. one hundred

nineteen days for purposes of R.C- 2945.71 had elapsec

for a total of one hundred forty-seven days (28 ~ 119

147).

Appellant was in custody from May !1. 1992 until the

day he actually went to trial on August 12. 1992 (9

days). In his application for reopening. appellant allezed

that his counsel was ineffective in tatling to show that

appellant had been released from prison on the drug abuse

charge prior to his arrest for felonious assault On direct

appeal, this court noted there was no evidence th

appellant had been released in Apri! 1992. The onls

evidence of appellant's incarceration status was the docke!

sheet showing that appellant had received a year sentence

for drug abuse. Even after calculating the days appellant

was credited for time served, there was no evidence

before the court that he was not still in prison on the drug

abuse charge. This court, relying on the validity of the

trial court record, did not credit appellant with triple time

during the period of May I 1, 1992 to August 12, 1992

because appellant was not in custody solely on the

pending charge of felonious assault. This interpretation

led to the conclusion that appellant was brought to (ria!

within two hundred seventy days (147 + 93 = 240).

**2. On April 14. 1997. appellant filed a “pro se

application to reopen direct appeal pursuant to Ohio Rules

of Appellate Procedure Rule 26(B).” ‘Appellant argued

that his appellate counsel was ineffective in failing to

present pertinent documentation in support of his speeds

trial argument. Appellant submitted documentation in

support of his argument. In finding appellant's application

well-taken. this court found the documentation {0 be

“ambiguous” but stated that the “documentation

nevertheless suggests appellant's claims mas have merit

In other words. if it could successtully be shown that

appellant was released from prison on the drug abuse

charge on April 24. 1992. he would be entitled to use the

triple count provision when calculating his incarceration

A-16

6453. State v. Flowers, (Ohio App. 6 Dist. 1998)

Ma 992 until August 12, 1992 (93 X 3 =

5 iS because appellant would have been held

he pending charge of telonious assault.

the triple count provision would lead to the

that appellant was not brought to trial within

events days (147 + 279 = 426)

appellant's application for reopening. this

ruling that appellant proved he had been

m prison on the drug abuse charge in April

Ve merely acknowledged the possibility that

nse! had ignored crucial documentation or

dence that may have changed the outcome of

jirect appeal. Rather than shedding some light

mbiguous documentation,” the parties in their

» chosen to accept as fact that appellant was

April 24, 1992

theretore only left to review the documents

vinally submitted in his application. The first

appellant submitted was from the Ohio

f Rehabilitation and Correction. The

was titled “expiration of sentence.” The

Page 2

document. dated April 24. 1992, acknowledged that

appellant had successtully completed a prison sentence.

Nothing in the document, however, identifies exactly what

sentence appellant successfully completed. The other

piece of documentation submitted by appellant was an

arrest report showing that he was arrested for the charge

of felonious assault on May Il, 1992. Once again. we

cannot tell from this document whether or not appellant

had been released trom prison on the drug abuse charve

on April 24. 1992

Accordingly, appellant has not shown that his appellate

counsel was ineffective and his sole assignment of error is

found not well-taken. The court finds that substantial

justice has been done the party complaining, and the

judgment of the Lucas County Court of Common Pleas is

affirmed. Costs assessed to appellant.

JUDGMENT AFFIRMED

PETER M. HANDWORK, PJ... MELVIN L.

RESNICK, J., JAMES R. SHERCK, J.. CONCUR.

Concrioht (eo) West Geaun 2000 No claim to orivinal U.S. Govt. works

1993 WL 308390, State v. Newlin, (Ohio App. 10 Dist. 1993)

*308390 NOTICE: RULE 2 OF THE OHIO

SUPREME COURT RULES FOR THE -

REPORTING OF OPINIONS IMPOSES

RESTRICTIONS AND LIMITATIONS ON THE

USE OF UNPUBLISHED OPINIONS

STATE of Ohio, Plaintiff-Appellee.

Gordon C. NEWLIN, Defendant-Appellant.

No. S7AP-222

Court of Appeals of Ohio, Franklin County.

Aug. 5, 1993.

Michael Miller, Pros. Atty., Patrick E. Sheera and

Joyce S. Anderson, for appellee.

Dennis C. Belli, for appellant

DECISION

ON MOTION FOR DELAYED

RECONSIDERATION

DESHLER, Judge.

**1 Defendant-appellant, Gordon C. Newlin, has

_filed an application for delayed reconsideration of

this court's decision in Stare v. Newlin (June 23,

1988), Franklin App. No. 87AP-222, unreported

(1988 Opinions 2226), wherein this court affirmed

judgments of the Franklin County Court of Common

Pleas finding defendant guilty of aggravated murder

and involuntary manslaughter and various other

counts in the indictment unrelated to the issues now

before the court. The trial court found the

involuntary manslaughter count merged with the

aggravated murder count and, therefore, did not

sentence defendant on the former. Defendant was

sentenced to life imprisonment for the aggravated

murder of Laura Carter. Following this decision,

appellant filed a pro se motion for reconsideration

which was generally denied, but allowed to the extent

the appellant was ordered to be resentenced regarding

one count of conspiracy pursuant to R.C. 2023.01(F).

In State v. Murnahan (1992), 63 Ohio St.3d 60, the

Ohio Supreme Court delineated a procedure for filing

a motion for reconsideration after the normal time for

filing for reconsideration had expired. A criminal

defendant may raise a claim of ineffective assistance

of appellate counsel by applying for “delayed

reconsideration” of his direct appeal in the court of

appeals where the alleged ineffective assistance of

counsel occurred. App.R. 26(B) became effective

D>. .

Page |

July 1, 1993

mandated by

“Application for Reopening.”

The rule now sets forth a procedure

Murnahan, under the heading,

Bringing an applicanion for delayed reconsideration

has been a two-stage process In the first siage. the

court of appeals must determune based upon the

detendant’s application, affidavits and portions of the

record before it, whether the defendant has set forth a

colorable claim of ineffective assistance of appellate

counsel and, if so, whether such ineffective assistance

of counsel prejudicially affected the outcome of

defendant's direct appeal. If the court of appeals

determunes that defendant has made the requisite

showing, the court shall then reinstate defendant's

direct appeal, commencing the second stage of the

process

Appellant now claims his original appellate counsel

was ineffective for failing to bring the following new

assignments of error

“Assignment of Error No. §

“The common pleas court erred to appellant's

prejudice in (1) overruling defendant-appellant's

exception to the jury charge with respect to the

inconsistency bemveen count one of the indictment,

aggravated murder of Laura Carter and count nine

of the indictment, involuntary manslaughter of the

same victim, (2) instructing the jury that it was

permissible to return inconsistent verdicts of guilty

of both aggravated murder and = involuntary

manslaughter in respect to one victim, (3) after the

jury retumed verdicts of guilty upon both

aggravated murder and involuntary manslaughter in

respect to the same victim, failing to direct the jury

to deliberate further with instructions that it may

return a guilty verdict of either aggravated murder

or involuntary manslaughter, but not both, and (4)

entering a judgment of conviction upon the

aggravated murder guilty verdict.

**2 “Assignment of Error No. 9:

“The prosecution having failed to prove that

defendant-appellant specifically intended to cause

the death of Laura Carter, the common please [sic ]

court erred to defendant-appellant’s prejudice in

denying his motion for a judgment of acquittal as to

count one of the indictment, aggravated murder, and

in instructing the jury that defendant-appellant may

be found guilty of aggravated murder it a gunshot

accidentally caused the death of Laura Carter.”

1993 WL 308390, State v. Newlin, (Ohio App. 10 Dist. 1993)

To proceed on a claim of ineffective assistance of

counsel, a defendant must show that his counsel's °

performance was so deficient that it was unreasonable

under prevailing professional norms. S¢rickland v.

Washington (1984). 466 U.S. 668. 687-688. Stare v

Seiber (1990), 56 Ohio Stu.3d 4. Ul. A defendant

must then show that " * * * there is a reasonable

probability that but for [his] counsel's unprofessional

errors, the result of the proceeding would have been

different.” Sertckland, supra, at 694. Applying this

standard to the case before us, we are unable to

conclude that defendant's appellate counsel was

ineffective within the meaning of Strickland.

Defendant alleges that his appellate counsel was

ineffective for failing to raise various claims of error

relating to the court's instructions and acceptance of

the verdicts returned by the jury. The defendant first

complains that error should have been asserted as a

result of the trial court instructing the jury on

aggravated murder and in a separate court of the

indictment for involuntary manslaughter.

Additionally, defendant claims counsel should have

asserted error based on the trial court's answer to a

jury question that permutted a verdict of guilty to be

retumed for both aggravated murder and involuntary

manslaughter arising from the same incident. The

defendant, relying principally on this court's decision

in State v. Tanner (Dec. 31, 1991), DIAP-263 and

91AP-651, unreported (1991 Opinions 6169), argues

that the court's instructions on the nwo homicide

related charges and the court's answer to a jury

question, as well as the acceptance of the verdict, was

an error as the two offenses are inconsistent. He

further argues the jury should not have been

permitted to consider the aggravated murder charge

and involuntary manslaughter charge unless the latter

was identified as a lesser included offense.

The defendant, among other charges, was indicted

for aggravated murder, R.C. 2901.03(A) and for

involuntary manslaughter, R.C. 2903.04(A). The

state proceeded to trial on the theory of transferred

intent, there being no dispute that the actual victim of

the shooting that occurred, Laura Carter, was not the

intended victim. The indictment for involuntary

manslaughter arose from the claim the defendant's

action resulted in the victim's death while committing

a felony. felonious assault. The record clearly reveals

the state wanted to prosecute the two offenses

separately as opposed to conceding that involuntary

manslaughter would be before the jury as a lesser

included offense. It is well-settled that involuntary

manslaughter is a lesser included offense of murder.

See State v. Rohdes (1986), 23 Ohio St.3d 225 and

* =

Page 2

State v. Kidder (1987), 32 Ohio St.3d 279. The state

argued that the nwo offenses, aggravated murder and

involuntary manslaughter were consistent from the

standpoint the concept of transferred intent. necessary

to the establishment of intent involving aggravated

murder, did not apply to involuntary manslaughter.

The trial court accepted this argument over objections

of trial counsel. The concept of transferred intent can

apply to aggravated murder, as affirmed in Stare v

Richey (1992). 64 Ohio St.3d 353. Since involuntary

manslaughter is a lesser included offense of murder

and the greater degree of homucide cannot be

committed without committing the lesser of the

offenses, conviction on both is not inconsistent. The

consideration of an offense as a lesser included

offense is succinctly stated in Kidder, supra, wherein

the court stated:

**3 “Again, to clarify, the entire lesser-included-

offense analysis, for purposes of R.C. 2945.74, is as

follows: an offense may be a lesser included

offense of another only if (i) the offense is a crime

of lesser degree than the other, (ii) the offense of the

greater degree cannot, as statutorily defined, ever be

commutted without the offense of the lesser degree

also being commutted, and (iii) some element of the

greater offense is not required to prove the

commussion of the lesser offense. Even though so

defined, a charge on the lesser included offense is

not required, unless the trier of fact could

reasonably reject an affirmative defense and could

reasonably find against the state and for the accused

upon one or more of the elements of the crime

charged, and for the state and against the accused on

the remaining elements, which by themselves would

sustain a conviction upon a lesser included offense.”

Therefore, the trial court's consideration of the two

offenses under the facts in this case did not result in

prejudicial error. This court's decision in Tanner,

supra, involved a different factual context and is not

dispositive of the decision in the case sub juice

Even if it would be deemed inconsistent, there is

authority for permitting inconsistent verdicts on

separate counts. As stated, in State v. ddams (1978).

53 Ohio St.2d 223:

"2. The several counts of an indictment containing

more than one count are not interdependent and an

inconsistency in a verdict does not arise out of

inconsistent responses to different couns [sic }, but

only arises out of inconsistent responses to the same

count.” (Citation omitted.) /d. at paragraph nwo of

the syllabus.

p-\9

0 TTT OOOO OO OOOO EEE eee

1993 WL 308390, State v. Newlin. (Ohio App. 10 Dist. 1993)

More importantly, the defendant has overlooked the

impact of R.C. 2941.25(A), which states:

"(A) Where the same conduct by defendant can be

construed to constitute nvo or more allied offenses

of simular import, the indictment or information may

contain counts for all such offenses. but the

defendant may be convicted of only one.”

As stated in State v. Darga (1985). 30 Ohio App.3d

54:

"However, R.C. 2941.25 has not been interpreted to

mean that a person cannot be indicted or charged.

tried, and found guilty of multiple offenses, even

when they are allied offenses.” (Citations onutted.)

Id. at 56.

And as more specifically addressed in State v. Kent

(1980), 68 Ohio App.2d 151, “[thhe allied offense

statute merely provides that where allied offenses are

present, the person can only be convicted of one of

the offenses. Conviction in this context means a

judgment of conviction.” Id. at 1354. (Emphasis

added.) And, as stated in State v. Henderson (1979),

$8 Ohio St.2d 171, a “conviction” is defined as more

than a verdict or finding of guilty. Henderson states

that a conviction means a combined occurrence of a

plea or verdict and/or finding of guilty and the

sentence imposed. Accordingly, a defendant may be

prosecuted for and convicted of two simular offenses,

but sentenced on only one conviction.

**4. While standing alone and in the manner it was

answered, the trial court's response of "yes" to the

jury's question of whether the jury could convict

defendant of both aggravated murder and involuntary

manslaughter was correct. While it was deserving of

more explanation, we cannot conclude the answer

given to the jury warranted the obvious necessity of a

challenge by appellate counsel. For reasons already

stated, the defendant was, under the facts presented.

found guilty of both offenses and this is permissible

considering the facts of this case, even though the

jury was not instructed that involuntary manslaughter

Page 3

is a lesser included offense.

The defendant's other claim of ineffective assistance

of appellate counsel is essentially a claim the tial

court committed error by failing to dismiss the

aggravated murder charge on motion for dismissal for

insufficient evidence and for an error in instructing

the jury erroneously that defendant could be found

guilty of aggravated murder if a gunshot accidentally

caused the death of Laura Carter. We do not find the

court’s jury instruction is literally as claimed by

defendant and since the claim of failing to dismiss the

aggravated murder count was considered in the

defendant's onginal appeal, such issue is precluded by

the doctrine of res judicata The mal court's

instructions on transferred intent were sufficient to

avoid the application of the concept of “plain error.”

We cannot conclude that appellant's counsel's failure

to raise either of these issues on appeal met the

standards set forth in Strickland, supra. Thus, we

find no ment in defendant's second assignment of

error relating to ineffective appellate counsel.

The appellant has raised claims of ineffective

assistance of appellate counsel for what amounts to a

failure to advance claims of error that are without

merit. Appellant has not shown prejudice or any

conformity to the requirements established in

Strickland, supra. In view of these circumstances,

language from the case of Engle v. /saac (1982), 456

U.S. 107, 102 S.Ct. 1558, is appropriate. "* * * We

have long recognized, however, that the constitution

guarantees criminal defendants only a fair mal and a

competent attorney. It does not insure that defense

counsel will recognize and raise every conceivable

constitutional claim. ***" /d. at 1575.

Based upon the foregoing, defendant's motion

provides no substantive grounds for relief and,

accordingly, defendant's application for delayed

reconsideration is denied.

- Motion for delayed reconsideration denied

WHITESIDE and PETREE, JJ., concur.

fs ee See ee Se, ee

STATE OF OHIO ) CN THE COURT OF S22EALS

)ss: NUINTH JUDICLAL DISTRICT

COUNTY OF LORAD )

STATE OF OEIO ) C.A. NO SEC ACCS597

)

Appeiles )

: )

v. )

)

TINA BORT )

)

Appellant )

) JOURNAL ENTRY

This cause was aearc upon appellant Tina Bort's moton to file an applicaton to reopen

imstanter. This cour cranted appellant an extension of ame to Gle ber application to reopen,

rendering the applic2toz cue on August 25, 1997. Appellant dled the instant motec as well as an

—

application to reopen, ca September 8, 1997. This court notes that, in the application to reopen,

appellant's current course! ironically complains appellant's former counsel was ineEective because

he failed to umely file documezts with this court.

Upon consideranon, the motion is granted.

Cn: Ivelisse Cruz, Assistant Public Defender, 8 East Long St, 11th Floor, Columous, OH 43215.

Gregory A Waite, Prosecuting Attorney, 226 Middle Ave., Elyma, OH ++

9.1L50gourl9

A--21

ARNOLD R. MURNAHAN,

Defendant-Appellee.

On Appeal ¢ from the Court of Appeals for Clark County, Ohio

Second Appellate District

BRIEF OF AMICUS CURITAE, ATTORNEY GENERAL OF OHIO

|: eee, LEE FISHER

hi ‘ Attorney General

* yan 22 WSs! ‘

. ‘ JACK W. DECKER (0021285)

Assistant Attorney General

State Office Tower, 26th Floor

30 East Broad Street

Columbus, Ohio 43266-0410

(614) 466-5414

COUNSEL FOR AMICUS CURIAE

STEPHEN A. SCHUMAKER

Clark County Prosecutor

DAVID E. SMITH (No. 0020413)

Assistant Prosecuting Attorney

50 East Columbia Street

Springfield, Ohio 45502

(513) 328-2574

COUNSEL FOR PLAINTIFF-APPELLANT

RANDALL M. DANA

Ohio Public Defencer

BARBARA A. FARNBACHER (No. 0036862)

Assistant Ohio Public Defender

8 East Long Street, llth Floor

Columbus, Ohio 43256-0567

(614) 466-5394

ARGUMENT

Provosition of Law Number ]:

A CLAIM OF INEFFECTIVE ASSISTANCE OF APPELLATE

COUNSEL IS NOT COGNIZABLE IN COLLATERAL

POST-CONVICTION PROCEEDINGS PURSUANT TO R.C.

2953.21; SUCH A CLAIM MUST BE PRESENTED IN THE CHAIN

OF DIRECT APPEAL, EITHER BY WAY OF A DIRECT APPEAL

TO THE OHIO SUPREME COURT FROM THE JUDGMENT OF THE

COURT OF APPEALS, OR ON AN APPLICATION FOR

RECONSIDERATION IN THE COURT OF APPEALS PURSUANT TO

OHIO APPELLATE RULES 26 AND 14(B). eae A oe

Authorities Cited in Syooort of Provosition of Law No.

BAR aha tn eR ee 8 ON Oe Re eo ek, ee

Anderson v, Harless (1982), 459 U.S. 4

Granberry v, Greer (1987), 481 U.S. 129. .

Castille v, Peoples (1989), 489 U.S. 346

Rose vy. Lundy (19862), 455 U.S. 509... « s

Ferguson v, Knight (6th Cir. 1987), 899 F.2d 1239.

Meeks v, Bergen (6th Cir. 1984), 749 F.2d 322.

Wainwright v. Sykes (1977), 433 U.S. 72. ..

Engle v, Isa (1982), 456 U.S. 107.

Henderson re Leese) Mee es eee 8 ee es

Murray v, Carrier (1986), 477 U.S. 478

729. FV 26 3443

Ewing v, McMackin (6th Cir. 1986),

Mauoin v. Smith (6th Circ. 1986), 785 F.2d 135.

Manning v. Alexander (6th Cir. 1990), 912 F.2d 878

Mancinc v, Alexander (1990), $0 Ohio St. 3¢

yet.

Th re Petition of Brown (1990), 49 Ohio St. 3d 222. . 7

State v, Koward (1989), 42 Ohio St. 3c 18.

Henry v. Mississiooi (1965), 379 U.S. 443... 6.5 6 & & S

McBee v, Grant (6th Cir. 1985), 763 F.2d 8ll .... . S

Johnson v, Mississivpi (1988), 4&6 u.S. 578. 10

Barr v. City of Columbia (1964), 378 U.S. 146. 10

Revnolds v, Ellingsworth (3rd Cir. 1988), 843 F.2d 712,

eert. denied, 488 U.S. 960... - +++ ++ 2s 10

Prihoda v. McCaughtry (7th Cir. 1990), 910 F.20 i379 10

Meadows v. Legursky (4th Cir. 1990), 904 F.2d 903,

cert. denied, lll S,. Ct. S23 Cy a as 10

Hi2] v. Black (Sth Cir. 1989), 887 F.2d 513. - +--+: -; 10

State v, Roberts (1982), 1 Ohio St. 3d 36. - +++: - 10

State v, Benton (1971), 27 Ohio St. 2d 87. - - ++: > 10

CONCLUSION 13

CERTIFICATE OF SERVICE ...-.- -

APPENDICES:

The Appendices attached to the State’s Merit Brief are

incorporated by reference herein.

A-24

LASES CiTED:

enderson v, Harless (1982), 459 U.S. 4

City of Eoiuehiae €3964), 378. 0.5. - i686.

lal

Castille v, Peoosles (1989), 489 U.S. 346

Dugger v. Adams (1989), 489 U.S. 401

Engie wv. Yeasae (1962), 456 U.S. 167.

799 F.2d 1143

Ewing v. McMackin (6th Cir. 1986),

Ferguson v, Knight (6th Cir. 1987), 809 F.2d 1239.

Granberry v, Greer (1987), 481 U.S. 129.

Mathorn wv. Lavorn (1962), 457 U.S. 255

Henderson v. Kibbe (1977), 431 U.S. 145.

Henry vv. Miesiesions (2965), 379 U.S. 443.

Bhi Si Bienes €3th Cit. 2989) ...687? F.2d 323.

In re Petition of Brown (1990), 49 Ohio St. 3d 222

Johnson v, Mississippi (1988), 486 U.S. 578. ..

Manning v. Alexander (1990), 50 Ohio St. 3d 127.

Manning v, Alexander (6th Cir. 1990), 912 F.2d 878

Maupin vy. Smith (6th Circ. 1986), 765 F.2d 135...

McBee y.Geank (6th Cir. 1985). 763 F.2¢ 811. .

Meadows v, Legursky (4th Cir. 1990), 904 F.2d 903,

Pade oe ee A ee es

cert. denied, 111 S. Ct.

‘Meeks vv, Bergen (6th Cir. 1984),

Murray vy. Carrier (1986), 477 U.S. 478 ..

749..F 20 322.

Prihode v, McCaughtry (7th Cir. 1990), 910 F.2d 1379

Revnolés v, Ellingsworth (3rd Cir. 1988), 843 F.2d 712,

faer . Bentee. 408: U8, $40.- 3 005 4 ko S

2n4e 9) nee gees, OSS. 2) BBO ee 4 ae ee a ree th

State vi. Sentos (1971), 27 Ohio St. 24

state v. Howard (1989), 42 Ohio St. 34 18.

Pie +. emer s £1982), 1 Ohie St. 36°36. .-. 2 ok YS 190

Ve Or tOeS yy -Svees £2977), £233.08. 72s 6. 5

STATUTES CITED:

26 U.S.C. Section 2254

LUTEREST OF AMICUS CURTAE

The Ohio Attorney General represents the State's interests

in collateral attacks on criminal convictions which name as the

respondent a state official, such as the warden of the

correctional facility at which the petitioner is detained. This

includes all Ohio prisoners’ petitions for federal habeas corpus

relief.

As explained herein, Ohio’s procedural rules for handling

Claims of ineffective assistance of appellate counsel are

important for determining the procedural posture of the same

allegations in federal habeas corpus. The decision below

indicates that at least some room for debate exists in Ohio as

to the proper state procedural vehicle for raising claims of

appellate ineffectiveness. To the extent Ohio procedural law is

unclear, federal courts may hear such Claims in the first

instance, despite the refusal of Ohio courts to have reviewed

them. This leads to a lack of respect for Ohio procedural

requirements, both by federal courts and prospective federal

litigants. Litigants aiming for federal habeas review have

little incentive to obey Ohio procedural requirements, secure in

the knowledge that the merits of their claims will be addressed

by federal courts anyway.

Conversely, when Ohio procedural requirements are clear anc

evenhandedly applied, federal courts will respect them and

refuse to entertain federal constitutional claims not previously

presented to Ohio courts as required by Ohio procedure. Claims

A-27

eee eee

defaulted for further Ohio review will be deemed defaulted for

federal habeas review as well.

Therefore, this brief is filed to urge this Court to

specify with particularity the Ohio remedies for ineffective

assistance of appellate counsel, in order to insure that such

claims will not rise up again, and be considered for the first

instance, in federal habeas corpus.

A-28

This O€fice is in agreement with the Statement of

and Facts as set forth in the Appellant's Merit Brief.

Proposi tion Qf Law Numbe a

A CLAIM OF INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL IS NOT

COGNIZABLE IN COLLATERAL POST-CONVICTION PROCEEDINGS PURSUANT

TO R.C. 2953.21; SUCH A CLAIM MUST BE PRESENTED IN THE CHAIN

OF DIRECT APPEAL, EITHER BY WAY OF A DIRECT APPEAL TO THE OHIO

SUPREME COURT FROM THE JUDGMENT OF THE COURT OF APPEALS, OR ON

AN APPLICATION FOR RECONSIDERATION IN THE COURT OF APPEALS

PURSUANT TO OHIO APPELLATE RULES 26 AND 14(B).

This office consulted with and assisted the Clark County

Prosecutor in briefing this appeal, and fully supports the

prosecutor's position as detailed in his merit brief. This

brief is therefore not intended to cover the same ground as the

prosecutor has already thoroughly explored. Rather, the purpose

of this brief is to stress the importance of a comprehensive

decision in this appeal, from the viewpoint of post-conviction

litigation once a case leaves the Ohio court system.

The procedural aspects of federal habeas corpus are

dominated by the twin concepts of exhaustion of state remedies

and waiver. Both have their roots in principles of federalism

and comity, and both deal with the petitioner's failure to have

given the state courts a fair opportunity to act on his claim

before presenting the claim to the federal courts.

‘The exhaustion doctrine is codified at 28 U.S.C. Section

2254 (b) and (c), which has generally been interpreted to

require a federal habeas claim first to have been fairly

presented as a federal constitutional claim to the state's

highest cour

Granherry wv. Greer (1987), 4<81 U.S. 128. A claim which is

presented using the wrong remedy is not fairly presented,

because the state courts have not had a fair opportunity to act

on it. Castille v, Peoples (1989), 489 U.S. 346. When a

federal habeas petition contains an unexhausted claim which has

t been forfeited in the state courts, the entire petition is

ordinarily dismissed without prejudice to permit presentation of

the claim to the state courts. Rose v, Lundy (1982), 455 U.S.

509. Otherwise, a claim which has not been fairly presented to

the state courts, but cannot be re-raised under state law, is

subject to a waiver analysis. See Ferguson v. Knight (6th Cir.

1987), 809 F.2d 1239, 1241-42; Meeks v, Bergen (6th Cir. 1984),

749 F.2d 322, 324.

Ordinarily, a habeas petitioner is not entitled to have a

federal court review his claim when it was “not resolved on the

merits in the state proceeding due to [petitioner's] failure to

raise (it] there as required by state procedure.“ Wainwright v,

Svkes (1977), 433 U.S. 72, 87. To hold otherwise would deter

the orderly presentation of claims and encourage “sandbagging”

in state court, defeat the finality of criminal litigation, and

undermine considerations of comity and feceralism. [JIqd., 433

U.S. at 88-90; see also, Engle v, Isaac (1982), 456 U.S. 107;

Henderson v, Kibbe (1977), 431 U.S. 145. The Svkes standard

applies to claims that were not, but could have been,

appeal in the state courts. Murrav v. Carrier (1986), 477 U.S.

1150-51.

raised on

478: Fwine v. McMackin (6th Cir. 1986), 799 F.2d 1143,

A-31

four-part analysis, as

A question of waiver requires a

Summarized in Mavoia vv. Saith (6th Cir. 1986), 785 F.2d 135,

oemeee

136-39:

1) A procedural default occurred when the petitioner failed

to comply with a state procedural! rule;

2) If the claim was presented at all, the state courts

actually enforced the procedural rule barring the claim;

3) The state procedural rule is an “adequate and

independent” ground to bar the claim; and

4) The petitioner has not shown sufficient cause for the

procedural default, and prejudice as a result.

“Cause” for failing to have raised a claim on the first appeal

of right consists of the novelty of the claim, some sort of

“external impediment,” or ineffective assistance of appellate

counsel. However, to serve as “cause” for having defaulted a

Claim on state appeal, ineffective assistance of appellate

counsel must first have been exhausted as an jndependent claim

in the state courts. Murray v, Carrier.

When a federal habeas petitioner wants to raise a federal

habeas claim that should have been raised on direct state appeal

but was not, he most commonly cites as “cause” the ineffective

assistance of appellate counsel. This, in turn, triggers a

federal inquiry, within the above framework, whether an

independent claim of ineffective assistance of appellate counsel

has itself been exhausted or waived in state court.

The first stage of either an exhaustion or a waiver

analysis requires the federal court to determine what the

correct Ohio remecy is. Presently, the federal courts have

ith

struggled with this question. After a series of inconsistent

unreported district court decisions, the Sixth Circuit purported

Alexander (6th Cir. 1990),

to settle the question in Manning v,

912 F.2d 678.

Prior to this Court's decisions in Manning v, Alexander

(1990), 50 Ohio St. 3d 127, and In re Petition of Brown (1990),

49 Ohio St. 3d 222, the district court had found Manning's claim

of ineffective assistance of appellate counsel, which he had

presented by way of an Ohio post-conviction petition, to be

unexhausted because post-conviction was the wrong remedy, and

Ohio habeas corpus appeared to be the correct one. Manning

appealed this decision to the Sixth Circuit. Simultaneously, he

filed an Ohio habeas petition which was dismissed by this Court

in Manning v, Alexander. Then, on Manning's appeal from the

district court decision, the Sixth Circuit reversed.

The Sixth Circuit reviewed several Ohio appellate decisions

holding appellate ineffectiveness claims not to be cognizable in

post-conviction proceedings, and several others which hed

apparently considered such claims where the cognizability issue

was not raised. The court relied most heavily on State v,

Howard (1989), 42 Ohio St. 3d 18, an appeal from the grant of

post-conviction relief in which this Court, without addressing

the cognizability question, had found appellate counsel to have

ive for failure to have challenged an Allen charge.

had

been ineffect

The Sixth Circuit concluded that this Court would never

exercised jurisdiction over the Allen charge claim unless

ineffective assistence of appellate counsel were cognizable in

post-conviction proceedings under Ohio lew. Therefore, a clain

of ineffective assistance of appellate counsel would be Geemec

exhausted for federal! purposes if presentec to this Court on an

appeal from denial of post-conviction relief.

There are all kinds of problems with the Sixth Circuit's

analysis in Manning, not the least of which were that court's

failure to realize that Ohio courts do not usually consider

issues that are not raised by either party, and the complete

failure to apply principles of res judicata to Manning's claim.

Worst of all, Manning creates 2a mismatch between Ohio and

federal law. As matters now stand, litigants who raise

appellate ineffectiveness claims under the wrong Ohio procedure

in a majority of Ohio appellate districts have nonetheless

exhausted their claims for federal purposes. Litigants who

raise such claims at the earliest possible opportunity under

Ohio procedure may or may not have exhausted their claims for

federal purposes.

The federal-state mismatch is particularly problematic in

death penalty cases, where the prisoner will typically assert in

Ohio post-conviction proceedings that appellate counsel was

ineffective for failure to raise a plethora of claimed trial

errors. These claims are almost uniformly frivolous. Yet, such

claims tend to complicate and delay Ohio post-conviction

proceedings even if they are not addressed on cognizability

grounds. But under Manning they are now deemed exhausted for

A-34

federal review, and will be reviewed on the merits there,

appreciably prolonging federal habde2es review in capital cases.

Much of the incentive for raising such claims will be removed by

requiring the death penalty appellant to raise such claims with

new counsel before this Court on direct appeal.

Part, but not all, of the mismatch will be resolved by this

Court's having answered, in the narrowest possible sense, the

question certified to it. The federal courts are not

constitutionally competent to prescribe matters of Ohio

procedure. Henry v, Mississippi (1965), 379 U.S. 443, 447;

M v. Grant (6th Cir. 1985), 763 F.2d 81ll,

815-16. The Sixth

Circuit did not attempt to prescribe Ohio law in Manning, but

simply endeavored to figure out what it was, for purposes of

applying federal rules of exhaustion and waiver. If this Court

concludes, as it must, that Manning incorrectly decided Ohio

law, the effect would be to “overrule” Manning.

Even so, a marrow decision would not necessarily result in

federal respect for Ohio procedural rules governing appellate

ineffectiveness claims, unless this Court, in addition to

holding what the remedy is not, also specified what the remedy

is. If a federal habeas petitioner has failed to raise his

ineffectiveness claim on direct appeal to this Court, but raises

it in federal habeas corpus, the federal nate may yet entertain

his claim on the merits if, at the third stage of the Maupin

analysis, it concludes the Ohio procedural rule not to be

"adequate and independent.”

ral courts will not enforce a state procedural rule to

a litigant's federal claim unless that rule is both

Fede

preciud

clearly announced and regularly enforced. Johnsen v

578; Hathore =, Lovorn (1982), 457

Mississiooi (1968), 486 U.S.

U.S. 255, 262-65; Barr v, City of Columbia (1964), 378 U.S. 146,

149-50; Henry v, Mississippi, 379 U.S. at 448 n.3; see also,

Ellinasworth (3rd Cir. 1988), 843 F.2d 712, 719, cert.

Revnolds v,

denied, 488 U.S. 960.

do not render the general “rule”

“Exceptions” to the state rule, such as

plain error, unenforceable.

Duaqger v, Adams (1989), 489 U.S. 401,

McCaughtry (7th Cir. 1990), 910 F.2d 1379, 1384-85; M

Legursky (4th Cir. 1990), 904 F.2d 903, 906-07, cert. denied, lll

S. Ct. 523; Hill v. Black (5th Cir. 1989), 887 F.2€@ 513, 516-17.

The “adequacy” requirement merely protects the federal litigant

against unanticipable or arbitrary applications of state

procedural rules seemingly manufactured for the occasion.

We are of the opinion that the Ohio rules have been

“adequate” ever since State v, Roberts (1982), 1 Ohio St. 3d 36,

plainly announced that res judicata requires new claims arising

in the court of appeals to be raised on further appeal to this

Court, and since State v, Benton (1971), 27 Ohio St. 2d 87,

strongly implied that the post-conviction statute does not

encompass claims not implicating the judgment of the trial

court. And enforcement of these rules looks less consistent

than it is, when viewed from the viewpoint of the Ohio system as

a whole, rather than the viewpoint of individual appellate

-1N-

@istricts. Nonetheless, the impression remains that .£ tne

federal courts misinterpreted Ohio law in Manning, they may not

hold federal habeas litigants to a higher standard of prescience

until this Court definitively lays out the law.

To answer the question certified solely in terms of whether

the post-conviction statute admits of appellate ineffectiveness

claims may tell prospective litigants what the remedy is not,

but not necessarily what it is. If the proper remedy is not

defined, the way remains open for inconsistent and unexpected

results in Ohio's appellate courts, and further disrespect for

Ohio's procedural requirements on the federal level--and among

prospective federal litigants. If prisoners have any incentive

whatever to bring actions under the wrong Ohio remedies, the

result must be wasteful to the resources of Ohio courts and

prosecutors.

Conversely, if this Court addresses the interplay between

the scope of the Ohio post-conviction statute and the doctrine

of res judicata, and spells out how appellate ineffectiveness

claims must be brought under a variety of circumstances, no one

will have any excuse for mistaking his remedies for such a

claim, and Ohio appellate courts will have adequate guidance for

consistent application of the principle that claims of error

must be raised at the earliest opportunity. Ohio procedural

rules will then be “adequate” for federal purposes, because they

will be well-definee and consistently enforcec. Federal habeas

ee A-37

eer 0 sas ue

corpus review will then compliment state procedural rules by

refusing to address claims not timely assertec as reguirec by

Ohio procecure.

If Ohio remedies are well-defined, prospective federal!

litigants will have no incentive but to raise their claims at

the earliest possible opportunity. All Ohioans’ interests will

be well-served by such a result. Meritless claims can be

disposed of quickly. If a claim has merit, quick corrective

action is possible, and the guilty will not go free because the

passage of time has made retrial impracticable.

ol Din

For the reasons stated in the State's Merit Brief and

herein, the Court should reverse the Gecision below. In so

doing, the Court should prescribe with perticularity a

prisoner's remedies when he claims the ineffective assistance of

appellate counsel.

Respectfully submitted,

LEE FISHER

Attorney General

JACK W. DECKER (0021285)

Assistant Attorney General

State Office Tower, 26th Floor

30 East Broad Street

Columbus, Ohio 43266-0410

(614) 466-5414

COUNSEL FOR AMICUS CURIAE

-l13-

pre FAA ae TsO

CEPTIFICATE OF SEavics

I hereby certify that 4 copy of

Amicus Curiae has been forwarded to David =.

Prosecuting attorney for Plaintiff-a;

Street, Springfielc, Ohio 45502, and also on Sarbare A.

Assistant Ohio Public Defender for

Farnbacher,

llth FIoor, Columbus,

Defendant-Appellee, 8 East Long Street,

via the U.S. epaid this 22nd

Ohio 43266-0587, Mail, postage pr

day of January, 1991.

JACK W. DECKER (0021285)

Assistant Attorney General

«el 65 F.3d 27, Foster v. Edwards, (C.A.6 (Ohio) 1998)

*27 165 F.3d 27

NOTICE: THIS IS AN UNPUBLISHED OPINION.

(The Court's decision is referenced in a "Table of

Decisions Without Reported Opinions” appearing in the

Federal Reporter. Use FI CTA6 Rule 10, FI CTA6 Rule

24 and FI CTA6 App. III, IOP 22 for rules regarding the

publication and citation of unpublished opinions.)

William H. FOSTER, Petitioner-Appellant,

Ronald D. EDWARDS, Warden, Respondent-Appellee.

No. 97-4218.

United States Court of Appeals, Sixth Circuit.

Sept. 23, 1998.

Before MERRITT, JONES, and SILER, Circuit Judges.

ORDER

William H. Foster, an Ohio state prisoner, appeals pro se

a district court judgment dismissing his petition for a writ

of habeas corpus filed under 28 U.S.C. § 2254, as barred

by the one-year statute of limitations in 28 U.S.C. §

2244(d). This case has been referred to a panel of the

court pursuant to Rule 9(a), Rules of the Sixth Circuit.

Upon examination, this panel unanimously agrees that

oral argument is not needed. Fed. R.App. P. 34(a).

In 1994, a jury convicted Foster of murder and

aggravated assault, both with gun specifications. He was

sentenced to eighteen years to life imprisonment, plus six

years on the specifications. His direct appeal was denied

by the Ohio Court of Appeals and by the Ohio Supreme

Court; the latter decision was filed on November 15,

1995. Foster also filed an application to reopen his direct

appeal, pursuant to Ohio R.App. P. 26(B). That

application was denied by the Ohio Court of Appeals and

the Ohio Supreme Court; the latter decision was filed on

June 5, 1996.

On May 1, 1997, Foster mailed to the district court an

application to proceed in forma pauperis and his habeas

corpus petition. The court received these documents on

May 12. The motion for pauper status was denied on May

27, Foster paid the filing fee on June 6, and the petition

was stamped filed on August 14, 1997. The district court

sua sponte dismissed the petition as barred by the one-

year statute of limitations in 28 U.S.C. § 2244(d). The

court construed the petition as having been filed on the

date of mailing. However, it did not consider whether the

pendency of the appeal of the denial of the application to

reopen should affect the running of the statute. The

district court subsequently denied Foster's motion for

Page |!

reconsideration, addressing the issue of the application to

reopen and finding that it did not affect the finality of the

judgment of conviction.

In this timely appeal, the parties have briefed only the

issue of whether the petition was barred by the statute of

limitations. This court reviews the district court's

conclusions in a habeas corpus proceeding de novo.

Levine v. Torvik, 986 F.2d 1506, 1512 (6th Cir.), cert.

denied, 509 U.S. 907, 113:S.Ct. 3001, 125 L.Ed.2d 694

(1993). }

Initially, the parties debate in their briefs when this

petition should be considered to have been filed. This

court has recently addressed a similar issue in the context

of a Title VII action. In 7ruitt.v. County of Wayne, 148

F.3d 644, 648 (6th Cir.1998), the court held that the

statute of limitations was tolled during the pendency of a

motion for pauper status, until such time as the order

denying the motion was presumptively received. The

plaintiff then must pay the’ filing fee before the statute

runs. Applying that holding to these facts, the statute

would have been tolled from May 1, when Foster mailed

the motion, until May 30, when he presumptively received

the order denying it. The ‘record shows that his prison

account was debited for the filing fee on June 6, which

would therefore become the filing date. With that

background, it must still be determined if this petition was

barred. ©

Under § 2244(d)(1)(A), the statute of limitations begins

to run on the date on which the judgment became final by

the conclusion of direct review. The district court

concluded that the judgment in this case became final on

November 15, 1995, when the Ohio Supreme Court

denied Foster's direct appeal. However, we conclude that

Foster's application to reopen his direct appeal should

figure into the calculation of the running of the statute in

some manner. Either the application to reopen rendered

the judgment nonfinal until it was resolved on June 5,

1996, a proposition the district court rejected without

citation to any authority, or it should count as a collateral

review of the judgment which tolls the running of the

statute under § 2244(d)(2), an option which the district

court apparently did not consider. In either case, the

petition under review was filed within one year of the

pertinent date, June 5, 1996, considering that the statute

was tolled during the pendency of the motion for pauper

Status.

*27_ Accordingly, the district court's judgment

dismissing this petition as barred by the statute of

limitations is vacated, and the case is remanded for

consideration on the merits. Rule 9(b)(3), Rules of the

Sixth Circuit.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.