# Opposition Brief — Bagley v. White > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1751%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2000 - **Citation:** 531 U.S. 940 ## Text —-* Mk EDITOR'S NOTE THE FOLLOWING PAGES WERE POOR HARD COPY AT THE TIME OF FILMING. Uf AND WHEN A BETTER COPY CAN BE OBTAINED, A NEW FICHE WILL BE ISSUED. : : 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 R> Se ume TUE Ut a 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 1] 2] 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 iv 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 Vv 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 vi RULES AND STATUTES Se Ts Site Ns teeiidintedscasserceuienterindeneaannahintepininstteasisabbibiadaebgetiaininininbieleuanhnneanninnnsaninnnk 19 PE Ti IE . Si RID eritscvirinnernnvinntinsintndainianannianninen sibdpeiaiciniskvenquandainbasiaiideiaiiaiie 19 SU Siis, MERI: TY IRIE cesses pede deca enishaninchbvtnsanieehnadessinanebhbiienntinadehasiielaticn 19 a IAT oles ccepsenactsaphiton chica niciemeh iil tienenverte ahaa beeline teiealisanieadnce 19 ea SAU a Vilesdict. ance cntiinincendicenigniesasiianenen nani tiiahieistirennheieeapnelatinanilediamninanaiaidicanititidiin 19 Se eee A TU wicca tectentiissedndaicwed sien isenciksseibalaiondbh adultes ninisheaechpianicancindsnnisiniesineinanipiinstaibisiend 20 I aI, Asiastock dsm nine ene ee teikondtabsiaaenbesaaihielaiak 19 SEs ih: Maes Ss Pe annr seer senevececnsminndannderensinnnntennaacsanansiianeisnaunnerenssinsitennenthanietaiannins 20 Benes Saas Tg OI sti hclacitbsaaeininmentcn cca kalashi Tsetioncih danenlintaltid 19 Peis Bk PI Be i ee anc cieinniesbsiecnssdinsieteratniiptisenieninseindtabanishssheclestaitinaiietiriniaiieaaleianesinealin tissues 20 Be ON aicsesccpetectetishintinhgicannpiaalesecibiciesiteietinnncsabisnesseideb ie sanicialoabiaotenisniaiaraialibaiiclicsy 20 FE es Eee GUD cinta naneniiiencdatennnas nee tiniinesisttsiiniainlnna ntsc ainaimiaitennetaainniipiaaaiananisihah 19 EE ile, Se ceUNIA 0's. UII seen ecnsoninisinkuschninthinncenediiveebiubd scan dininicse nab oentiaahnnaicabbneniahaciecanteai 19 SEs Sa. We Ur IPR aicesounervstechaina Cilcacicbestdaianccuaniphittcsabcnieiaiannbhasiaahdahileadbenanasenisnalenneseatalih 19 I a INO ic OI ica rich enn thennsnneicn caeihhanittarnaseninsoibhabiacamaanadtiaNlebanantlecniboinnd 19 SE aN 0 2 CU acc sansaslonciicdpaccalsAg btsbuipin demsarcinniieieansbncanthuenibcanbbbahinicahinnmlaiadiaiallbbaanntbedtianes 19 Bi ne CIEE PIT sisucntenesciniasiien Ca tacenesinrvilitenadinactiteseceneitomaninnne’ ipncequsmupdisiseinaeciinnunbialgeadapiacnsti 20 Bhs Be RI. Bn FG Fa cise cscennrscckavanseencvinaninasnscacimnnrnsninnsenneneretinnisennionnnannseanenbicanbichanainnsinses 19 is a IN Be PRR FG since ntch nei citnsegusainneseniasiunsanstoniiniesbanionsaniinarsmnataunansimantaasnanssaihaib 19 I, Rs SN Fe Btw endniecaseranrsacevesinnnsssasisiniannnibicenecnnaciantanessiinedbtansiseinuesadansietanasininlenshanedansen 19 BN PARR: BFS GIA FIR csciasncnsinsissserssairacesannranressennninnieneumnenvenbrasdeaahansebunbinscmmioniantaasnaninan 19 BO, ar Mes GREP ckreiasidinencasinsanescnasieacetiusnentnensniihicnaventacatnabihasiebbsabedunasabiniinunbegbabeanens 19 CANIN RIIOII MRL isso hseaiccladichigecscececlbipncce epnenlerabeataanicbaiacemaselel eats 19 OS ERED Oe Ae eae a MOR te or RAR ee 19 Vii ERD SON See evcseahichanicsinsicntitieisiniiteckaniastniciescacnihahepianaenaaniiaieniaaaaa dlacilancbuddabbodiaadas 19 EG 8 | BMesnmr in Cun NU CT AER TO RNY Fe TERT SN EEU NN Sans TS Ber NEN Fie 19 EE Fi Ris a ee aN seosnesscctehickcentolicepsinsecsiclhditensnepieisihieeabntiladiedoasiea tick Uiaiintelaaannets 19 od Pe ES | ae aae Cd CN Sen ae ONCE Piss hse eet oa 20 PR Ne es RO a picionieisscesiceniiternitiensiieeinnsineinavatasabioaiiiicalscipaniiienatainaa ataibihassa babii 19 Paces EE Bag MUM Sha cicenystciebisaanieibidicansndieliensneieusccabeesiptlea andi tenlabalaabdccnbieahbinaiebeyeonl 20 i SE i a encnieeninaarneen\scssnrthtaisaiipiiis tanta ilbanpha lenin anibsaa aa tbe tai 19 PU LmIe: Gece Maui W's Panes divsihisicccestincenscesucsiuiulenicbiecntasbigin pndasbaaeaaeinidibtinbeaabsaaigigedtaleutee Adumenibcs 20 eR 8 RR ata reer apeee Oe PRY NOM CLC pa Ore Ne RE NES a 19 FE Fee a ies imncniatrncticininahetennicininaia cea bdahionanidditisancanbaneeaabiaaign ee 20 Ne Bs PI Fe Benches iatenhssenesilesiesicinsnnticsheninnsscioatebaslihanisnteiiansidelaanabdoticasaiisbalcddlcainibsiaaiiiah as 10 ee a TR a i ecceseaicriesccscbeivhcsecsionaiocsintehaelepiecbanemananlipibemiadlbea a tcltne acdsee passim FE a ee Ss Me SE I nissisk inact nicicsnesnsdessnstmanneniinchehtadenecieali apn Aha Niches Aatasaacilekank 19 OR SI a incase atseincnsihcsiesnintan ed ninsaesnaindscapbaaeatanniiiiian sia icaianadbdiaiiaadbcaediaaa dedi: 20 I Fe aes Sc hE site echecinircn eesintaccmsaiaicanhis ches daetinsnilaaeadoatrmaaate emcee a aa 20 Sia, Ses RE aa We pistes sanisonstinccnbibshisicacintinabbiibicidenipiaileiebaccticeint a ataiet cia etal 20 SB CR, FI BiB vse sinsecscvensietsannincevensiciinl puetickidacionetniiptataabipligaatieiseatbcemibimesacilcmebmaatibaaaas 6, 17, 18 Be] BFR POD sccsssvsiiinsihebiinsinansiiansnicnessiiesidiesheemaneaatebaseiestasiasiadagiaiaa india Leliontd deaaiaacabainhdaitiate 20 ER COMMS CEG ROE FORE cvctiinicicnsnacsninetecencecivaraahepndenineieie ati cas ee ae 20 Hema. CRG. Fam, GTA Dit sicessiessnicaineiheninsiioiseneeeneseineiineanslbeighca ciara ee ceca 20 SO BD. ELITE sicsiniesscsiniarciosiiceliesiebiccaniaiabsinichpelincecniiecidabligialnada aha ceuaiiit Mat ict eae Ba 20 RIUM BE. COGW,, BGI scsccrsccsncsnnssnseitincinsnintssahenssnpicdidiepsbolsaiebaeeaii kates dadesaaabets Masecitdiadanan teas 20 Wim, BR, SRR BB AC ie i sasisscninsotnsnnesaiecavinss ses iptaniadecnccipbonenacicesaeaetialipeaeensienaaaiiniesla ageee 20 Pe TR a 20 WH, Vik Cmte § SIE aoc cssissicetsinsssteitgneieesnnconsianinbondhtietesieealbouipansbacdeiipiaeindanetii Hada tae ine 20 Vili Wash. R. App. P. 16.4......... Wis. Stat. § 809.30... Wyo. Stat. §§ 7-14-101-108 POPC OC OOE ESCO OHOSOOOSESEEOOS OO OEETOOOT OS OOHOSOSSOS EOS EEO EEO CO EEE EEEE EE DEEE DEL EEE EEE EEEEEEee POPS HOCH OO ESE EE OOOO EE SE ETOSEO SSH EOS OSES OES ESEEEE ESOS EEO E EE EE SESE EEE EESEEEeeeeeeseseseceses SOC S OSH H PSOE OSOSO SHOE OO ES ESEO EEO EESEO OOS OHS OOS S ESSE OSES EES EE SEED EES EE EEE EES OSES SOEEEESeEDS ix 20 20 20 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 Ee (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). 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. (C) If an application for reconsideration under division (A) of this rule is filed with the 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 Copyright (c) West Group 2000 No claim to original U.S. Govt. works 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 Copyright (c) West Group 2000 No claim to original U.S. Govt. works 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 Copyright (c) West Group 2000 No claim to original U.S. Govt. works 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 Copyright (c) West Group 2000 No claim to original U.S. Govt. works 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 Copyright (c) West Group 2000 No claim to original U.S. Govt. works A-8 “AS ¢ 1S oe co AFRR p Say _—-“—~--* 4 — aa &e.= 4 “ne _ . /* ——- = . % = ApSei-S-2> =2S 22220 A@= 2ESli cation fs> reccecizs sesee aces . — = — = —_ =: — -_= —— _——_ —_ _ ee —__—_ 2 = VSS=— S&S C-E22 Ch e2lr2cuivs assiste=ce c= accelisz2 ccucse:. 3 ow , 1. ome = -_—_—__ —; ad ASS ea-S== WES Co=Svictac Cl SuSser is Secacster *°52:-; i — SSsiemge «= — : : = ; eS STK Ge eee sO2S Coavicticm it 2524. See Stir2 + Sreres _— - 4 7A A — - nd = - “4 Fmd - a oe od ——— ~-__— _- (SOc. 2&4, 1984), cssas Ase. Be. 1-84-2423; ia iveants. S583 teat . -- =a 5 mela = ‘ 2 = = - e Py ar an“ s SaSE, SFP e--2=- 5 22s8@ Wes 28Sicmecs SS> TSaslew Sy che Chic Fublic -a= = — ian > ies =-%a- - =e BwElSeoS= Come.ssis=. a>re_se Fas Siles =o rescerse =s the _—— — - ee ee ee ee ee eee oe rj we eh a ~ 2% - es = _ - - ee - 'temnmoritr _ ~~ > — . CTE Sse- Cmjpectec Ls e= ausceciy aemre~SCl TUSY 2S cCllcs as es - ~ - ~ . --- ° - - o en Ge Se ee ee ee = - ~— . & 4 == SeeG Alc ismative Celecse cf sei £-cefe-se anc ete Crm t= che aspiicacs wes Cecrved c= che etteccive assiscecce cf asseilacre ccunsel. This srccesed woe WES EeC Cosccveses . . 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.” Copyright (c) West Group 2000 No claim to original U.S. Govt. works 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. Copyright (c) West Group 2000 No claim to orginal U.S. Govt. works 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. Copyright (c) West Group 2000 No claim to original U.S. Govt. works fs ee See ee Se, ee a 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 Hathorn v, Lovorn (1982), 457 o.6, 23535 « ss 2 6 «© @& « 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 Sonmer vw emame (1969), 469 U.S. 402 . - «+ + © e eo » 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 14 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. i 3a lal n < 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 ee 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: é 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 ©. S22 ance me le (3982). 489 U.S. 4; 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 ro Oo 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 2 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 ee 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, v. 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. Copyright (c) West Group 1999 No claim to original U.S. Govt. works A-41 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1751%3A3. Public record. Not legal advice.