Harding v. Russell

27 F. App'x 372
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 11, 2001
DocketNo. 99-4302
StatusPublished
Cited by2 cases

This text of 27 F. App'x 372 (Harding v. Russell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harding v. Russell, 27 F. App'x 372 (6th Cir. 2001).

Opinion

NELSON, Circuit Judge.

Donald Lee Harding, an Ohio prisoner, here appeals the dismissal (on failure-to-exhaust-state-remedies grounds) of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. The petition was predicated on, among other things, an alleged denial of effective assistance of counsel as a result of the failure of appointed counsel to file a timely appeal. The district court concluded that this claim could still be pursued in the state system through an application for reopening of an appeal pursuant to Ohio R.App. P. 26(B). Because we do not read Rule 26(B) as being applicable in the petitioner’s situation, and because it appears to us that the Ohio courts have already undertaken to adjudicate the merits of the ineffective assistance claim, we shall reverse the dismissal of the petition.

I

The underlying facts are not in dispute. On January 28, 1998, Charles W. Root was killed at his place of employment, a “Stop ‘n’ Go” convenience store in Columbus, Ohio, by repeated blows from a 31-pound canister of carbon dioxide. A police officer saw a white and maroon vehicle leaving the scene and got a partial license plate number. A computer search disclosed that a car matching the officer’s description was registered at petitioner Harding’s address.

The police arrived at the address at 4 o’clock on the morning of January 29 and found the car parked in the street, its engine compartment still warm. The petitioner’s grandfather answered the officers’ knock on the door and indicated that the petitioner was upstairs. The police proceeded upstairs to the petitioner’s bedroom and got him out of bed. Once in the room, the officers observed a tennis shoe consistent with a print found at the scene and a leather jacket with blood spattered on it. The petitioner also had blood on his fingers and nails. The police placed him under arrest and returned the next afternoon with a search warrant.

[374]*374Petitioner Harding was indicted in Franklin County, Ohio, on one count of aggravated murder with a death penalty specification and one count of aggravated robbery. His attorney, James Owen, filed several pre-trial motions to suppress evidence, including a motion to suppress the evidence seized on the morning of the arrest. The state trial court denied these motions. Mr. Harding then pleaded no contest — preserving his search and seizure issues for appeal — waived his right to a jury trial and proceeded instead before a three-judge panel. Convicted in March of 1989, he was sentenced to a combined term of 30 years to life.

After imposing sentence, the trial court appointed the Franklin County Public Defender to serve as appellate counsel. The public defender’s office failed to perfect a direct appeal within the 30-day period prescribed by statute. Instead, more than 15 months after the sentencing, the defender’s office asked the Franklin County Court of Appeals for leave to proceed with a delayed appeal on the constitutionality of the search of Harding’s bedroom. The defender’s office asserted that it did not learn of its appointment as counsel until after the 30-day appeal period had expired. Mr. Owen, Harding’s original counsel, subsequently contradicted this assertion, attesting that he promptly hand-delivered a copy of the court’s order to the public defender’s office and personally followed up with two different attorneys in the office.

The court of appeals denied the motion for a delayed appeal on January 8, 1991, concluding on the basis of a transcript submitted with the motion that the “inevitable result in this case is affirmance of the trial court’s judgment.” An appeal to the Ohio Supreme Court followed. That court dismissed the appeal sua sponte, finding that no substantial constitutional question was presented.

More than five years later, on April 1, 1996, Mr. Harding filed a petition in the Franklin County Court of Common Pleas seeking post-conviction relief pursuant to O.R.C. § 2953.21. The petition set forth six claims for relief, one of which was based on the trial court’s alleged failure to see that the public defender’s office received timely notice of its appointment as counsel and two of which were based on the conduct of the defender’s office in failing to perfect a timely appeal. The common pleas court denied the petition on July 23, 1997. Declaring that the earlier motion for a delayed appeal had raised both the issue of timely notification of appointment as counsel and the issue “of appointed counsel’s failure to file a timely notice of appeal,” the court held that the claims were barred as res judicata.

On appeal, the Franklin County Court of Appeals affirmed the denial of the petition. Insofar as the ineffective assistance of counsel claim was concerned, the court of appeals reasoned that a showing of prejudice was required under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that no such showing was possible here, the court of appeals already having held that the “inevitable result” of an appeal of the conviction would be an affirmance.

The Ohio Supreme Court declined to exercise jurisdiction to hear the case, whereupon Mr. Harding filed his habeas petition in the United States District Court for the Southern District of Ohio. The petition raised the following claims, among others:

“1. That [petitioner’s] conviction and sentence are void or voidable because the trial court’s failure to timely notify the Franklin County Public Defender of the appointment as petitioner’s appellate counsel de[375]*375nied him his right to counsel on his first direct appeal.
2. That the Franklin County Public Defender’s failure to timely file a notice of appeal constituted ineffective assistance of counsel and led to the violation of the petitioner’s First, Fifth, Sixth, Ninth and Fourteenth Amendment rights.
5. That [petitioner’s] conviction and sentence are void or voidable because of state induced error. Specifically, the State of Ohio, through the Franklin County Public Defender’s office, impeded the defense of the petitioner by failing to timely file a notice of appeal.”

The district court distinguished between the petitioner’s first claim, which it characterized as a claim of error on the part of the trial court, and the second and fifth claims, which it saw as claims of ineffective assistance of counsel. Concluding that, under Ohio law, Mr. Harding had not exhausted his state remedies as to the second and fifth claims, the district court dismissed the petition on September 22, 1999.

The petitioner filed a motion to reconsider and, two days later, a notice of appeal and a motion for certificate of appealability. The district court issued a certificate of appealability and dismissed the motion for reconsideration. This court subsequently remanded the case for reconsideration of the decision to grant a certificate of appealability in light of the Supreme Court’s decision in Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

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Related

Harding v. Russell
156 F. App'x 740 (Fifth Circuit, 2005)
State v. Hill
827 N.E.2d 351 (Ohio Court of Appeals, 2005)

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Bluebook (online)
27 F. App'x 372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harding-v-russell-ca6-2001.