Clifton Onunwor v. Ernie Moore ( 2016 )

AVERN COHN, District Judge,

concurring.

I concur in the result reached by the lead opinion that Onunwor’s claims are procedurally defaulted for failure to comply with a state court procedural rule that requires counsel to furnish the court with a copy of the transcript and exhibits from his trial. I fail to understand, however, why when it was obvious that the transcripts were not filed, that the Ohio appellate courts did not direct counsel to do so. It seems this was a simple solution to a technical error. This is particularly so where there appears to be no dispute that the transcript was filed on Onunwor’s direct appeal and therefore was already part of the file of the case. Onunwor lost the right to have his claims heard on the merits as a consequence of his counsel’s negligence and a strict adherence to a procedural rule. This is a demonstration where the procedural default doctrine in habeas jurisprudence does little to advance justice and simply exalts form over substance. Baron Parke would have been pleased with the outcome.