Ronnie Wilson v. Pat Hurley , 382 F. App'x 471 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0389n.06
No. 08-4538
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jun 28, 2010
RONNIE D. WILSON, LEONARD GREEN, Clerk
Petitioner-Appellant,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
PAT HURLEY, NORTHERN DISTRICT OF OHIO
Respondent-Appellee.
/
Before: CLAY and GILMAN, Circuit Judges; and ZATKOFF, District Judge.*
CLAY, Circuit Judge. Petitioner Ronnie Wilson appeals the district court’s denial of his
petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. For the reasons set forth
below, we AFFIRM the district court’s order and DENY the petition for habeas corpus relief.
BACKGROUND
The Court of Appeals of Ohio stated the underlying facts of the crime as follows:
Wilson’s convictions stem from accusations by his daughter, CW, involving
improper sexual conduct. In November 2004, while they were driving together to
Lima, Ohio, CW first reported to her mother, Barbara Wilson, that her father had
touched her in a sexual manner, and that he had “done [things] a father should not do
to a child.” Barbara immediately turned the car around and returned home to
confront Wilson; she sent CW and her siblings to an aunt’s house.
*
The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District of Michigan, sitting
by designation.
1
Barbara confronted Wilson, alone, about CW’s accusations at their home in
Cloverdale, Ohio. Wilson initially denied all of his daughter’s allegations. However,
after Barbara summoned CW to return home to confront her father Wilson eventually
confessed, admitting that what CW said was true. He stated that he “did not know
why” he had done these things.
The family did not report this incident, apparently at CW’s request, and began
attending counseling sessions in the hopes of keeping the family together. However,
Barbara and Wilson eventually separated, after the extent of Wilson’s actions became
clear several months later.
CW initially disclosed to her mother in November 2004 that her father had touched
her inappropriately. In May 2005, however, CW reported the full extent of Wilson’s
activity to her mother; that Wilson’s inappropriate touching had begun in 2000 when
she was eleven years old, that it progressed to him having her perform oral sex on
him about once a week, that it evolved into him performing oral sex on her, and
eventually to anal sex. This activity continued for over four years, and only stopped
after CW told her father that it could not continue.
After CW disclosed the full extent of Wilson’s actions to her mother, Barbara
contacted the police.
State v. Wilson, No. 12-05-20, 2006 WL 1062103, at *1 (Ohio Ct. App. Apr. 24, 2006).
Petitioner was indicted on June 3, 2005 by the Putnam County Grand Jury of nine counts of
rape in violation of Ohio Revised Code (“ORC”) § 2907.02(A)(1)(b) and eleven counts of sexual
battery in violation of ORC § 2907.03(A)(5). On August 29, 2005, a jury convicted Petitioner on
all counts in the indictment. On September 20, 2005, the trial court sentenced Petitioner to thirty
years in prison. Specifically, the court sentenced Petitioner to ten years’ imprisonment on each of
the rape counts and five years’ imprisonment on each of the sexual battery counts. Three sets of rape
counts were to be served consecutively, and the sexual battery counts were to be served concurrently,
resulting in a total of 30 years.
On October 26, 2005, through new counsel, Petitioner filed a notice of appeal, raising two
assignments of error: (1) the trial court committed an error of law in determining competency
2
pursuant to ORC § 2945.42, and (2) Petitioner was denied the effective assistance of counsel. On
April 24, 2006, the Ohio Court of Appeals for the Third Appellate District affirmed Petitioner’s
convictions. On June 8, 2006, Petitioner filed a notice of appeal, raising as his only claim the
argument that ORC § 2945.42 does not create an exception for the admission of privileged spousal
communications, made in furtherance of preserving the marriage and the family, in a prosecution for
rape and sexual battery against the parties’ child. On October 4, 2006, the Ohio Supreme Court
denied Petitioner leave to appeal.
On June 16, 2007, through new counsel, Petitioner filed an application to reopen his direct
appeal pursuant to Ohio Rule of Appellate Procedure 26(B). In this application, Petitioner raised the
following assignments of error:
1. Ronnie Wilson was denied his Constitutional rights under the Fourth, Fifth, Sixth
and Fourteenth Amendments to the U.S. Constitution when a) the first nine counts
of the indictment were defective because it did not include an element or
specification required by the statute and b) trial counsel was ineffective in failing to
file a pre-trial motion to dismiss.
2. Ronnie Wilson was denied his constitutional rights under the Fourth, Fifth, Sixth
and Fourteenth Amendments to the U.S. Constitution when a) the trial court’s
instruction to the jury regarding the first nine counts failed to require the jury to
consider and make an independent finding of a material element and fact regarding
the age of the complainant and b) trial counsel was ineffective in failing to object to
this instruction, when the age of the complainant was a major issue at trial.
3. Ronnie Wilson was denied his constitutional rights under the Fourth, Fifth, Sixth
and Fourteenth Amendments to the U.S. Constitution when a) the verdict forms in
the first nine counts, reflecting the findings of the jury, do not state the separate and
independent determination of age of the complainant that is statutorily required,
when this is a major issue at trial and b) trial counsel was ineffective in failing to
object to the defective verdict forms.
4. Ronnie Wilson was denied his constitutional rights under the Fourth, Fifth, Sixth,
Eighth and Fourteenth Amendments to the U.S. Constitution when a) the sentencing
judge enhances his sentence, contra the Blakely v. Washington rule, using un-indicted
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conduct as a basis to improperly render an excessive sentence and b) trial counsel
was ineffective in failing to object at the sentencing hearing.
5. Ronnie Wilson was denied his constitutional rights under the Fourth, Fifth, Sixth
and Fourteenth Amendments to the U.S. Constitution when a) a series of photographs
are introduced by the prosecution with typed commentary stating opinions on the
alleged conduct; that, in certain situations, the investigation was ongoing, all of
which was hearsay, created a profile and gave the jury the impression that guilt was
preordained and b) trial counsel was ineffective under the Strickland doctrine in
failing to move to redact the commentaries.
6. Ronnie Wilson was denied his constitutional rights under the Fourth, Fifth, Sixth
and Fourteenth Amendments to the U.S. Constitution when a) his wife, acting as a
Government agent, and not as a private person, secretly records a tape with Ronnie
Wilson, and this tape is introduced in the case-in-chief, and significantly relied upon
by the prosecution and b) defense counsel was ineffective under the Strickland
doctrine in failing to object under the proper issue.
7. Ronnie Wilson was denied his Constitutional rights under the Fourth, Fifth, Sixth
and Fourteenth Amendments to the U.S. Constitution when a) the evidence at trial
shows the indictment was constructively amended and b) trial counsel was ineffective
under the Strickland doctrine in failing to object.
(Hab. Pet. at 3-5). On August 2, 2007, the Ohio Court of Appeals for the Third Appellate District
denied his application as untimely. On August 20, 2007, Petition filed a notice of appeal, raising the
same seven assignments of error plus one additional ground of error:
When the appellate attorney (1) fails to notify the client of the ninety day rule in the
re-opening of an appeal and (2) there is a threshold showing of constitutional errors
[previously] not presented, the court of appeals errs in denying the application, contra
the Fifth, Sixth and Fourteenth Amendments to the Constitution.
(Hab. Pet. at 21). On October 31, 2007, the Ohio Supreme Court dismissed the appeal as not
involving any substantial constitutional question.
On September 28, 2007, Petitioner filed a habeas petition, raising eleven grounds for relief.
These include the seven grounds of relief he raised in his Rule 26(B) application (grounds one
through seven), the ground he raised on appeal from the denial of his Rule 26(B) application (ground
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nine), the claims of error he raised on direct appeal concerning the ineffective assistance of trial
counsel (ground eleven) and the spousal communications privilege (ground ten), and the following
additional claim: “Petitioner Wilson was denied effective assistance of appellate counsel as
guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution” (ground
eight). (Dist. Ct. R.E. 16 at 5-6). On September 18, 2008, the magistrate judge recommended
denying the habeas petition. On October 6, 2008, the district court denied the petition but issued a
certificate of appealability as to two issues: (1) whether Petitioner’s first nine claims and eleventh
claim for relief are procedurally defaulted, and (2) whether cause and prejudice has been shown with
respect to the procedural default. On October 27, 2008, Petitioner timely filed a notice of appeal to
this Court.
DISCUSSION
I. Standard of Review
We review a district court’s dismissal of a petition brought pursuant to 28 U.S.C. § 2254 de
novo, but the district court’s underlying factual findings for clear error. Thompson v. Bell, 580 F.3d
423, 433 (6th Cir. 2009) (citing White v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2005)).
Because Petitioner filed his habeas petition in 2007, the petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat.
1214. See Evans v. Hudson, 575 F.3d 560, 564 (6th Cir. 2009). Under the AEDPA, Petitioner may
obtain relief only if he can demonstrate that the state court’s decision was “contrary to, or involved
an unreasonable application of, clearly established Federal law,” 28 U.S.C. § 2254(d)(1), or that the
state court relied on an “unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d)(2).
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II. Procedural Default
A. Standard
A federal court may not consider a claim for habeas corpus relief if the claim was
procedurally defaulted in state court, unless the petitioner shows: (1) “cause” for his failure to
comply with the state’s procedural rules and “prejudice” resulting from the alleged violation of
federal law, or (2) that the federal court’s refusal to consider the claim will result in a fundamental
miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 749-50 (1991); Harris v. Reed, 489
U.S. 255, 262 (1989). See also Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006).
A federal habeas petitioner can procedurally default a claim by “fail[ing] to raise that claim
before the state courts while state-court remedies are still available” or by failing to comply with “a
state procedural rule that prevents the state courts from reaching the merits of the petitioner’s claim.”
Lundgren, 440 F.3d at 763 (quoting Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir. 2000)).
“When the state procedural rule prevents the state court from hearing the merits of the claim,
procedural default occurs when 1) a petitioner failed to comply with the rule, 2) the state actually
enforced the rule against the petitioner, and 3) the rule is an ‘adequate and independent’ state ground
foreclosing review of a federal constitutional claim.” Id. (citing Willis v. Smith, 351 F.3d 741, 744
(6th Cir. 2003)). See also Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986) (the first case in this
circuit to adopt the above three-part test). “Failure to comply with well-established and normally
enforced procedural rules usually constitutes ‘adequate and independent’ state grounds for
foreclosing review.” Lundgren, 440 F.3d at 763 (citing Willis, 351 F.3d at 745). See also Beard v.
Kindler, 130 S. Ct. 612, 617 (2009) (a state procedural rule is adequate to create a procedural bar if
6
it is “‘firmly established and regularly followed’” (quoting Lee v. Kemna, 534 U.S. 362, 376
(2002))).
B. Analysis
Ohio Rule of Appellate Procedure 26(B) states that a defendant in a criminal case may apply
for reopening of the appeal from the judgment of conviction and sentence within ninety days of the
appellate court’s decision on direct appeal, “unless the applicant shows good cause for filing at a
later time.” Ohio R. App. P. 26(B)(1). Petitioner did not raise his first nine grounds for relief on
direct appeal; rather, he first raised them in a Rule 26(B) application submitted approximately eight
months after the Ohio Supreme Court denied his direct appeal. Petitioner raised his eleventh ground
for relief–that he was denied the effective assistance of trial counsel–on direct appeal to the Ohio
Court of Appeals, but then he failed to include it in his subsequent appeal to the Ohio Supreme
Court.
Petitioner now argues that his first nine grounds for relief, as well as his eleventh ground for
relief, are not procedurally defaulted, despite the fact that he did not raise these grounds for relief on
direct appeal to the Ohio Supreme Court or in a timely Rule 26(B) application.1 According to
Petitioner, Rule 26(B) cannot provide a basis for procedural default, because it is not an “adequate
1
Despite certification of the issue, Petitioner has failed to raise any arguments on appeal
concerning the procedural default of his eleventh ground for relief. As noted above, Petitioner raised
his eleventh ground for relief–that he was denied the effective assistance of trial counsel–on direct
appeal to the Ohio Court of Appeals, but then he failed to include it in his subsequent appeal to the
Ohio Supreme Court. Ohio’s post-conviction relief statute, ORC § 2953.21, bars consideration of
any issue that could have been fully litigated on direct appeal from a judgment of conviction. See
State v. Perry, 10 Ohio St. 2d 175, 176 (1967); State v. Combs, 100 Ohio App. 3d 90, 98 (1994).
Thus, Petitioner “failed to raise that claim before the state courts while state-court remedies [were]
still available.” Lundgren, 440 F.3d at 763. Given that Petitioner has provided no argument as to
how he may overcome this procedural default, Petitioner has abandoned the argument that his
eleventh claim for relief is not procedurally defaulted.
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and independent” state ground on which the state can rely to foreclose review of Petitioner’s federal
claims under prong three of this Court’s Maupin test. Specifically, “the discretionary nature of 26(B)
Rule [sic] relating to untimeliness, plus the fact that no criteria is set to guide the State Court of
Appeals [as to the question of what constitutes good cause], results in a rule that is not adequately
and firmly established.” (Pet.’s Br. at 16).
Petitioner does not dispute that prongs one and two of the Maupin test are satisfied. With
regard to prong one, Petitioner failed to comply with Rule 26(B) by failing to file his application to
reopen his direct appeal within the required ninety day period. With regard to prong two, the state
actually enforced the rule against Petitioner when it denied his Rule 26(B) application to reopen his
direct appeal on the basis that the application was not filed within the required ninety day period and
Petitioner had “fail[ed] to show good cause for the application being filed untimely.” (Hab. Pet. at
A-1).
With regard to prong three, which provides the basis of Petitioner’s dispute, we have held
that a petitioner’s failure to comply with Rule 26(B) is an “adequate and independent” state ground
on which the state can rely to foreclose review of a petitioner’s federal claims. In Fautenberry v.
Mitchell, we held that “the timeliness requirements in [Rule] 26(B) . . . are an actually enforced,
adequate and independent state ground upon which the Ohio courts consistently refuse to address
ineffective assistance of appellate counsel claims.” 515 F.3d 614, 640 (6th Cir. 2008). See also
Tolliver v. Sheets, 594 F.3d 900, 928 n.11 (6th Cir. 2010) (“[w]e have repeatedly concluded that
Rule 26(B) was both ‘firmly established’ and ‘regularly followed’ as applied in non-capital cases
[since] 1998”); Wickline v. Mitchell, 319 F.3d 813, 823 (6th Cir. 2003) (finding that the petitioner’s
ineffective assistance of appellate counsel claims were procedurally defaulted because he failed to
8
comply with Rule 26(B)); Coleman v. Mitchell, 244 F.3d 533, 540 (6th Cir. 2001) (finding the
petitioner’s claim to be procedurally defaulted and rejecting the petitioner’s argument that Rule
26(B) is not a firmly established and regularly followed procedural rule). In Monzo v. Edwards, 281
F.3d 568, 578 (6th Cir. 2002), we rejected the petitioner’s argument that there is no uniformity in
the application of the good cause requirement, finding that “[o]ur review of Ohio law leads us to
conclude that there was sufficient guidance as to what would not constitute good cause [under Rule
26(B)] at the time the rule was applied.” See also Parker v. Bagley, 543 F.3d 859, 862 (6th Cir.
2008) (reaffirming the holding in Monzo that the timeliness and good cause requirements of Rule
26(B) have been “firmly established and regularly followed” in non-capital cases in Ohio); Scuba
v. Brigano, 527 F.3d 479, 488 (6th Cir. 2007) (same).
Petitioner attempts to sidestep this Court’s precedent on Rule 26(B) by arguing that the
problem with the rule is not the lack of uniformity of application, but rather the “unbridled discretion
that the Ohio Courts of Appeals have in initially determining whether good cause is present.” (Pet.’s
Rep. Br. at 3). In support of his argument concerning the unbridled discretion in the application of
Rule 26(B), Petitioner points to Dietz v. Money, 391 F.3d 804, 810-11 (6th Cir. 2004), where we held
that Ohio Rule of Appellate Procedure 5(A) governing delayed appeals “does not constitute an
‘adequate’ ground to bar habeas review . . . [because it] does not specify the criteria the courts should
use in determining whether to grant a delayed appeal.” Rule 5(A) specifies no criteria for the courts
to use in assessing a motion for a delayed appeal, instead simply requiring the defendant to indicate
his reasons for failing to perfect a timely appeal. Id. at 809 (citing Ohio R. App. P. 5(A)).
However, in contrast to Rule 5(A), we have found that, beginning with the Ohio Supreme
Court decision in State v. Reddick, Ohio courts have developed criteria for defining what constitutes
9
good cause under Rule 26(B), which limit the Ohio courts’ discretion in applying the rule. See
Monzo, 281 F.3d at 578 (citing State v. Reddick, 647 N.E.2d 784, 786 (Ohio 1995) (“[Rule 26(B)
was intended to allow the belated presentation of colorable claims that defendants/appellants were
prevented from presenting timely by particular circumstances. Lack of effort or imagination, and
ignorance of the law, are not such circumstances and do not automatically establish good cause for
failure to seek timely relief.”); State v. Kaszas, No. 72546/72547, 2000 WL 1195676, at *1 (Ohio
Ct. App. Aug. 14, 2000) (listing decisions defining what constitutes good cause)). Furthermore, in
Beard v. Kindler, the Supreme Court recently rejected the argument that a discretionary state
procedural rule may not serve as an adequate ground to bar federal habeas review.2 130 S. Ct. at 618.
According to the Court, “a discretionary rule can be ‘firmly established’ and ‘regularly
followed’-even if the appropriate exercise of discretion may permit consideration of a federal claim
in some cases but not others.” Id. Thus, contrary to Petitioner’s argument, discretion alone does not
necessarily make a state procedural rule so inadequate as to bar federal habeas review.3
2
In addition to Rule 5(A), Petitioner also points to the underlying procedural rule in Beard
as providing support for his argument. The Third Circuit held that Pennsylvania’s fugitive forfeiture
rule did not provide an adequate basis to bar federal habeas review because it was not “consistently
or strictly applied.” Kindler v. Horn, 542 F.3d 70, 78-80 (3d Cir. 2008). However, after Petitioner
submitted his briefs in the instant case, the Supreme Court overturned the Third Circuit on the issue
of whether a discretionary state procedural rule may serve as an adequate ground to bar federal
habeas review. Furthermore, even in the absence of the Supreme Court decision, the Pennsylvania
fugitive forfeiture rule is distinguishable from Rule 26(B) in that the Third Circuit did not find there
to be a body of Pennsylvania caselaw limiting the discretion of the state courts. Accordingly, the
Pennsylvania fugitive forfeiture rule does not help Petitioner’s case.
3
In a supplemental filing and at oral arguments, Petitioner has argued that Bostick v.
Stevenson, 589 F.3d 160 (4th Cir. 2009), makes clear that the Supreme Court intended Beard to be
read narrowly. According to Petitioner, Beard applies only if the state courts have limited discretion
to interpret a rule, whereas the Ohio courts have unbridled discretion in interpreting the “good cause”
requirement of Rule 26(B). However, Bostick is inapplicable to the instant case because it involves
a mandatory state rule that was being applied arbitrarily–falling outside the holding of Beard–
10
Accordingly, we hold that Petitioner’s first nine claims and his eleventh claim for relief are
procedurally defaulted.
III. Cause and Prejudice
A. Standards
Because Petitioner’s claims are procedurally defaulted, this Court may not review them
unless Petitioner can show cause and prejudice:4
In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas review
of the claims is barred unless the prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law, or demonstrate that
failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750. See also Maupin, 785 F.2d at 138.
The “cause” standard in procedural default cases “requires the petitioner to show that ‘some
objective factor external to the defense impeded counsel’s efforts’ to raise the claim in state court.”
McCleskey v. Zant, 499 U.S. 467, 493 (1991) (citation omitted). Such factors may include
interference by officials, an attorney error rising to the level of ineffective assistance of counsel, or
a showing that a factual or legal basis for a claim was not previously available. Id. at 493-94.
Ineffective assistance of counsel may constitute cause for a procedural default only at a stage
of the proceedings where a petitioner has a Sixth Amendment right to counsel. See Smith v. Ohio
whereas Rule 26(B) is a discretionary rule that is not being applied arbitrarily–falling within the
holding of Beard. Furthermore, as explained above, Ohio courts have developed criteria for defining
what constitutes good cause under Rule 26(B), and so the state courts do not have unbridled
discretion in applying the rule. Accordingly, Bostick does not help Petitioner’s case.
4
Petitioner does not claim that a miscarriage of justice will result from enforcing the
procedural default in his case, and this issue has not been certified on appeal. Accordingly, we will
not address it here.
11
Dep't of Rehab. & Corr., 463 F.3d 426, 433 (6th Cir. 2006). See also Murray v. Carrier, 477 U.S.
478, 488 (1986); Coleman v. Thompson, 501 U.S. at 752. “[T]he right to appointed counsel extends
to the first appeal of right, and no further.” Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). It
does not extend to discretionary appeals or collateral post-conviction proceedings. Id. In Lopez v.
Wilson, 426 F.3d 339, 341 (6th Cir. 2005), the en banc Court held that an application for reopening
a direct appeal under Rule 26(B) is a collateral proceeding rather than part of the direct right of
appeal. Thus, “there is no federal constitutional right to assistance of counsel at that stage.” Id. at
352. Since there is no right to the assistance of counsel at the Rule 26(B) stage of the proceedings,
we have held that a petitioner’s counsel cannot be ineffective for failing to file a Rule 26(B)
application on his behalf. See Scuba, 527 F.3d at 489 (citing Wainwright v. Torna, 455 U.S. 586,
587-88 (1982) (“Since respondent had no constitutional right to counsel, he could not be deprived
of the effective assistance of counsel by his retained counsel’s failure to file the application timely.”);
Jackson v. Johnson, 217 F.3d 360, 364 (5th Cir. 2000) (no constitutional right to counsel for
purposes of filing a rehearing motion; counsel on direct appeal has no duty to inform a client of the
option to file the same pro se)).
In the instant case, Petitioner argues that his appellate counsel’s failure to advise him of the
ninety day deadline for filing a Rule 26(B) application constitutes cause sufficient to overcome his
procedural default. Petitioner argues that, like in Smith v. Ohio Department of Rehabilitation &
Corrections, 463 F.3d at 433, Petitioner’s claim of ineffective assistance of counsel does not relate
to his new appellate counsel’s performance at the Rule 26(B) stage, but rather to his first appellate
counsel’s performance on direct appeal. In Smith, counsel neglected to inform the petitioner of the
decision of the Ohio Court of Appeals on direct appeal, impeding the petitioner’s opportunity for a
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further timely appeal to the Ohio Supreme Court. Id. at 432. We held that counsel’s failure to
inform the petitioner of the Ohio Court of Appeals’ decision amounted to cause with respect to his
procedural default in the Ohio Supreme Court, despite the fact that the appeal to the Supreme Court
was discretionary and no constitutional right to counsel attached, because notification of the Court
of Appeals’ decision was part of appellate counsel’s duties in representing her client during the first
appeal of right in the Court of Appeals. Id. at 433 (“The court’s ultimate decision regarding a
particular legal proceeding is part of that legal proceeding, and appointed counsel’s duties in
representing a client during that legal proceeding include the duty of informing her client of the
outcome of the proceeding.”). Likewise, in the instant case, Petitioner argues that even though he
did not have a constitutional right to a Rule 26(B) application or effective assistance of counsel at
that stage, his appellate counsel’s duty to provide effective assistance during the first appeal of right
carried with it the continuing duty to notify Petitioner of the deadline for filing a Rule 26(B)
application.
However, unlike in Smith, the conduct that Petitioner challenges does not “relate[] to
representation at a stage of the proceeding when there is a right to counsel.” Id. at 433 n.4. It is
undisputed that appellate counsel in this case provided Petitioner with timely notice of the decision
of the Ohio Court of Appeals. Counsel’s alleged failure to inform Petitioner of the time
requirements for filing a Rule 26(B) application for reopening the appeal–unlike informing a client
of the decision in a proceeding in which counsel represented that client–does not relate to the
continuation of the direct appeal. Rather, such conduct relates to an independent, collateral
proceeding. Appellate counsel would not even be in the position to advise a defendant concerning
the time requirement for filing a Rule 26(B) application to reopen the appeal until after the defendant
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appealed his judgment of conviction to the Supreme Court, at which point the defendant no longer
has the constitutional right to effective assistance of counsel.
Because Petitioner has not shown cause for his procedural default, we need not reach the
question of whether Petitioner has shown prejudice resulting from his procedural default. See
Tolliver, 594 F.3d at 930 n.13.
CONCLUSION
Because Petitioner’s first nine claims and his eleventh claim for relief are procedurally
defaulted, and because Petitioner has not shown cause with respect to the default, we hereby
AFFIRM the district court’s order denying the petition for habeas corpus relief.
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