RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Lopez v. Wilson No. 01-3875 ELECTRONIC CITATION: 2004 FED App. 0020P (6th Cir.) File Name: 04a0020p.06 Thomas Price, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Appellee. UNITED STATES COURT OF APPEALS SUHRHEINRICH, J., delivered the opinion of the court, in which ROGERS, J., joined. COLE, J. (p. 19), delivered a FOR THE SIXTH CIRCUIT separate opinion concurring in the judgment. _________________ _________________ FERNANDO LOPEZ, X OPINION Petitioner-Appellant, - _________________ - - No. 01-3875 v. I. Introduction - > , SUHRHEINRICH, Circuit Judge. Under Rule 26(B) of the JULIUS WILSON, Warden, - Ohio Rules of Appellate Procedure, an Ohio defendant Respondent-Appellee. - seeking to file an ineffective assistance of appellate counsel N claim must file an application to reopen in the state court of Appeal from the United States District Court appeals where the appeal was decided rather than in a state for the Northern District of Ohio at Cleveland. trial court. In White v. Schotten, 201 F.3d 743, 752-53 (6th No. 00-02416—Donald C. Nugent, District Judge. Cir.), cert. denied, 531 U.S. 940 (2000), this Court held that an application to reopen appeal under Rule 26(B) of the Ohio Argued: September 16, 2003 Rules of Appellate Procedure is part of a criminal defendant’s direct appeal, rather than part of the state’s post-conviction Decided and Filed: January 15, 2004 process. The difference matters because a defendant is constitutionally entitled to counsel only during the direct Before: SUHRHEINRICH, COLE, and ROGERS, Circuit appeal process. Compare Evitts v. Lucey, 469 U.S. 387, 396 Judges. (1985) (holding that a defendant is entitled to effective assistance of counsel on direct appeal), with Pennsylvania v. _________________ Finley, 481 U.S. 551, 555 (1987) (holding that a defendant is not constitutionally entitled to counsel at any stage of COUNSEL criminal proceedings beyond a direct appeal as of right). Based on White, Petitioner Fernando Lopez claims in this ARGUED: Robert D. Little, LAW OFFICE OF ROBERT habeas action that the state court’s denial of his request for LITTLE, Maplewood, New Jersey, for Appellant. Douglas R. appointment of counsel to file a Rule 26(B) motion violated Cole, OFFICE OF THE ATTORNEY GENERAL OF OHIO, his federal constitutional rights. Lopez appeals from the order Columbus, Ohio, for Appellee. ON BRIEF: Robert D. of the district court denying his petition for writ of habeas Little, LAW OFFICE OF ROBERT LITTLE, Maplewood, corpus on this ground. See 28 U.S.C. § 2254. This Court New Jersey, for Appellant. David M. Gormley, Thelma granted a certificate of appealability on that issue.
1 No. 01-3875 Lopez v. Wilson 3 4 Lopez v. Wilson No. 01-3875
For the reasons that follow, we conclude that White is not superior appellate court. The Court held that a defendant had controlling in this case, because the White decision predates a remedy nonetheless, by raising such claims in the Ohio the AEDPA,1 which applies here, and that under the AEDPA, appellate courts under the then-extant version of Rule 26. the state court’s decision was not contrary to clearly Murnahan 584 N.E.2d, 1290 n. 3. Although by its terms Rule established Federal law. We hold that the district court did 26 seems to permit only reconsideration of “any cause or not err in denying the writ. motion originally submitted on appeal,” the Ohio Supreme Court “construe[d] claims of ineffective assistance of II. Background appellate counsel to be tantamount to constitutional claims that should have been presented on appeal,” and thus within A. Rule 26(B) the scope of the rule. Id. On July 1, 1993, Rule 26(B) of the Ohio Rules of Appellate At the same time, the Murnahan court recognized the Procedure took effect. That rule provides in relevant part: imperfect fit between Rule 26 and ineffective assistance of appellate claims and recommended that Rule 26 be amended. A defendant in a criminal case may apply for reopening Id. at 1209 n.6. In response, the Ohio Supreme Court of the appeal from the judgment of conviction and amended the rule in 1993, adding the above-quoted sentence, based on a claim of ineffective assistance of subsection.2 However, neither the Ohio Supreme Court nor appellate counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the 2 The Staff N ote to the 7-1-93 A mendme nt states in relevant p art: appellate judgment unless the applicant shows good The 1993 amendment was in response to the Supreme cause for filing at a later time. Court’s opinion in State v. Murnahan (1992), 63 Ohio St. 3d 60, 66 n.6. In Murnahan, the Co urt held that claims of ineffective The Ohio Supreme Court adopted this rule after its decision assistance of appellate counsel may be raised in an application in State v. Murnahan, 584 N.E.2d 1204 (Ohio 1992). In for reconsideration in the court of appeals, syl. 1, and requested that a rule be drafted to govern suc h applications. Id. at 66 n.6. Murnahan, counsel on direct appeal submitted an Anders App. R. 26 p reviously permitted applications for brief and was permitted to withdraw. Murnahan filed a pro se reconsideration to be filed within ten days of the journalization brief, but the Ohio Court of Appeals rejected his appeal. or announcement of the appellate decision. The Court noted in Murnahan next sought post-conviction relief in the state trial Murnahan that although reconsideration under Rule 26 appeared court under Ohio Rev. Code § 2953.21, claiming that his to be restricted to issues already presented to the ap pellate court, the Court “construe[d] claims of ineffective assistance of appellate counsel had been ineffective. The Ohio Supreme app ellate counsel to be tantamount to constitutional claims that Court held that ineffective assistance of appellate claims are should have been presented on appea l, and but for their omission not cognizable in post-conviction proceedings pursuant to the outcome of the case would be otherwise.” Id. at 65 n.3 . Ohio Rev. Code. § 2953.21, because it would be improper for Because “claims of ineffective assistance of appellate counsel an inferior court to rule on the adequacy of a proceeding in a may be left undiscovered due to the inadequacy of appellate counsel or the inability of the defendant to identify such errors within the time allotted for reconsideration,” the Court stated that it may be necessary for defendants to request delayed 1 reconsideration. Id. at 65-66. The amend ment thus provides for Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. reconsideration in criminal cases beyond the previous limitation § 2254 (d)(1) (1994 & Supp. VII) (AE DPA ). of time. The rule permits delayed reconsideration only of the No. 01-3875 Lopez v. Wilson 5 6 Lopez v. Wilson No. 01-3875
the new rule indicated whether such proceedings were to be cannot be considered part of an Ohio post-conviction treated as part of direct or collateral review. matter. This Court did so in White, supra. Counsel in that case did If the application for delayed reconsideration is neither not file a Rule 26(B) application until three years after the part of a state habeas nor state post-conviction ninety-day limit had expired. Noting that an attorney’s failure proceeding, it must be a continuation of activities related to meet a deadline in handling a client’s appeal falls below to the direct appeal itself. Because a defendant is entitled minimal standards of competency imposed on counsel to to effective assistance of counsel on direct appeal, see satisfy constitutional safeguards, and that a defendant only Evitts v. Lucey, 469 U.S. 387, 396 . . . (1985), such an has a constitutional right to assistance of counsel on direct individual must be accorded effective assistance of appeal, the question became whether Rule 26(B) applications counsel throughout all phases of that stage of the were part of direct or collateral review. The White court criminal proceedings. concluded that an application to reopen appeal under Rule 26(B) is part of a criminal defendant’s direct appeal, and White, 201 F.3d at 752-53. because of that, counsel was constitutionally required. B. Procedural History The State of Ohio argues . . . that a petitioner such as White has no constitutional right to counsel at any stage Lopez was convicted in 1998 of three counts of rape and of criminal proceedings beyond a direct appeal as of three counts of gross sexual imposition. The lower courts right. See Pennsylvania v. Finley, 481 U.S. 551, 555 . . . sentenced him to terms of life imprisonment on the rape (1987). Without a right to counsel, the petitioner also counts and three years of imprisonment on each of the has no commensurate right to effective assistance from remaining counts. The Ohio Court of Appeals affirmed the that counsel. However, as this court’s decision in convictions and sentences on direct appeal. State v. Lopez, Manning v. Alexander, 912 F.2d 878, 882 (6th Cir. No. 74096, 1999 WL 304527 (Ohio App. 1999). Lopez was 1999), made clear, Ohio law does not consider an attack represented by counsel during that appeal. on the adequacy of appellate counsel to be proper in a state habeas proceeding. See Manning, 912 F.2d at 882 In December 1999, more than six months after the state (citing Manning v. Alexander, 50 Ohio St.3d 127, 553 court of appeals issued its judgment, Lopez filed a pro se N.E.2d 264 (Ohio1990); In re: Petition of Brown, 49 application to reopen his appeal under Ohio R. App. P. 26(B), Ohio St.3d 222, 551 N.E.2d 954 (1990)). Furthermore, alleging that his lawyer in his direct appeal was Murnahan emphatically holds that any such attack constitutionally ineffective. Lopez also asked the state court of appeals to appoint new counsel for him. The appellate court ordered a copy of his trial transcript and ordered all proceedings not previously transcribed as part of the direct direct appeal and does not ap ply to ap peals related to post- appeal to be transcribed and filed with the court. On May 11, conviction proceedings pursuant to R.C. 2953.21 . The amendment permits applications to be filed more than ninety 2000, the Ohio Court of Appeals denied Lopez’s motion to days after the appellate judgment’s journalization if good cause reopen the appeal and denied the motion for appointment of is shown. See App. R. 1 4(B ). counsel, finding that Lopez had not shown that his original appellate lawyer was ineffective. State v. Lopez, No. 74096, (Ohio R. A pp. P . 26(b ), Staff note to 7-1 -93 amendme nt). No. 01-3875 Lopez v. Wilson 7 8 Lopez v. Wilson No. 01-3875
2000 WL 574441 (Ohio App. 2000). The Ohio Supreme “defendant in a criminal case may apply for reopening of Court declined to review that judgment. State v. Lopez, 732 the appeal from the judgment of conviction and sentence, N.E.2d 999 (Ohio 2000). based on a claim of ineffective assistance of appellate counsel”-- a civil, post-conviction or collateral On September 21, 2000, Lopez filed his federal habeas proceeding for challenging a final judgment in a criminal petition, raising two claims: (1) he was denied his federal case, or is it instead part of the defendant’s first-appeal- right to the effective assistance of appellate counsel during his of-right in the criminal case? application for reopening filed under Ohio Appellate Rule 26(B); and (2) he was denied his right to the effective III. AEDPA assistance of appellate counsel on his first direct appeal. The district court denied the petition, and denied a certificate of “Congress enacted AEDPA to reduce delays in the appealability. The court held that Lopez was not entitled to execution of state and federal criminal sentences, . . . and to habeas relief on these claims because the state court’s further the principles of comity, finality, and federalism.” decisions were not contrary to or an unreasonable application Woodford v. Garceau, 123 S. Ct. 1398, 1401 (2003) (internal of clearly established law as determined by the United States citations and quotation marks omitted). Congress did so Supreme Court. See 28 U.S.C. § 2254(d); Williams v. Taylor, through both procedural requirements, see David v. Hall, 318 529 U.S. 362, 412 (2000). The district court noted as to the F.3d 343, 346 (1st Cir. 2003) (stating that “[o]ne of AEDPA’s first claim, a lack of Supreme Court precedent supporting a main purposes was to compel habeas petitions to be filed right to counsel in an application to reopen a direct appeal. promptly after conviction and direct review, to limit their The district court also observed that, in White, this Court held number, and to permit delayed or second petitions only in that an Ohio criminal defendant has the right to counsel fairly narrow and explicitly defined circumstances” (citing 28 during his application for reopening under Rule 26(B), but did U.S.C. § 2244(d)(1)(A)-(D); H.R.Rep. No. 104-518 at 111 not find it dispositive because White was decided prior to (1996)), and standards governing the merits of a habeas Williams, and therefore, this Court had no reason to analyze application. See Woodford, 123 S. Ct. 1401. One of the the state court opinion under the Williams factors. mechanisms for accomplishing these goals was an amended version of 28 U.S.C. § 2254(d)(1), which places “new Lopez appealed to this Court. On February 14, 2002, this constraint[s] on the power of a federal habeas court to grant Court granted a certificate of appealability on the following a state prisoner’s application for a writ of habeas corpus with issue: “Whether Lopez was denied the right to the effective respect to claims adjudicated on the merits in state court.” assistance of appellate counsel during his application for Williams v. Taylor, 529 U.S. 362, 412 (2000). reopening filed under Ohio App. R. 26(B).” Order dated February 14, 2002. The Act provides in relevant part as follows:
On April 22, 2002, Respondent asked this Court to certify (d) An application for a writ of habeas corpus on behalf the following question to the Ohio Supreme Court: of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that Is a proceeding filed in the Ohio court of appeals under was adjudicated on the merits in State court proceedings Rule 26(B) of the Ohio Rules of Appellate unless the adjudication of the claim– Procedure–which provides in relevant part that a No. 01-3875 Lopez v. Wilson 9 10 Lopez v. Wilson No. 01-3875
(1) resulted in a decision that was contrary to, or Supreme Court precedent or otherwise explain its reasoning. involved an unreasonable application of, clearly However, the state court decision need not cite Supreme established Federal law, as determined by the Supreme Court precedent, or even reflect awareness of Supreme Court Court of the United States. cases, “so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 28 U.S.C. § 2254(d)(1). In Williams, supra, the Supreme U.S. 3, 8 (2002) (per curiam). Court explained the meaning of “contrary to” and “unreasonable application.” A state court’s legal decision is IV. Analysis “contrary to” clearly established federal law under § 2254(d)(1) if the state court arrived at a conclusion opposite A. Merits to that reached by the Supreme Court on a question of law or if the state court decided a case differently than the Supreme Lopez argues that the district court erred in denying the writ Court’s decisions on materially indistinguishable facts. Id. at because the United States Supreme Court has found a 412-13. An “unreasonable application” occurs when the state constitutional right to appointed counsel, and this Court has court correctly identified the correct legal principle from ruled that Ohio’s application to reopen a direct appeal is a Supreme Court precedent but unreasonably applied that direct appeal requiring the appointment of counsel. See principle to the facts of the case before it. Id. “[C]learly White, supra. Were this case not governed by the AEPDA, established Federal law, as determined by the Supreme White, a pre-AEDPA decision, would be controlling and Court,” refers to “the holdings, as opposed to the dicta, of [the Lopez would easily prevail on this point. However, the Supreme] Court’s decisions as of the time of the relevant AEDPA applies here, requiring us to analyze the state-court decision.” Id. at 412. constitutional question under the more deferential standards set forth by that Act. Compare Taylor v. Withrow, 288 F.3d Thus, according to the AEDPA and the Supreme Court, our 846, 850 (6th Cir. 2002) (noting that the AEDPA “sets a inquiry begins with the relevant state court decision. Here, higher hurdle for those seeking habeas than before”), cert. the Ohio Court of Appeals denied Lopez’s motion for denied, 537 U.S. 1007 (2002), with McQueen v. Scroggy, 99 appointment of counsel on May 11, 2000, stating merely that F.3d 1302, 1310 (6th Cir. 1996) (pre-AEDPA case; stating “Motion by Appellant, Pro Se, For Appointment of Counsel that de novo standard of review applies to questions of federal is Denied.”3 The state court did not identify controlling constitutional law). See also Price v. Vincent, 123 S. Ct. 1848 (2003) (reiterating § 2254 standards, as explained by Williams court; faulting Sixth Circuit for reciting this standard but then 3 evaluating the respondent’s claim de novo rather than through Ironically, in its opinion denying Petitioner’s pro se application to reopen direct appeal, the Ohio Court of App eals cited White v. Schotten, the lens of § 2254(d)). In short, because the standard of albeit for a different proposition: review is much more deferential under the AEDPA, White is not controlling. The fact that applicant’s appellate couns el did not present the assignm ents of error as federal constitutional violations does not preclude applicant from raising these issues in a federal habeas petition and having them reviewed by a federal court if counsel’s counsel did not raise federal issues in state court]. failure to do so am ounted to ineffective assistance of appellate counsel. See White v. Schotten , (6th Cir.2000), 201 F.3d 743. State v. Lopez, No. 74096, 2000 WL 574441, at *3 (N.D. Ohio May 11, Consequently, applicant is not prejudiced [because his appellate 200 0). No. 01-3875 Lopez v. Wilson 11 12 Lopez v. Wilson No. 01-3875
The White decision involved the application of Evitts to “a (emphasis added)). If 26(B) proceedings were not part of unique aspect of Ohio law,” Rule 26(B). See McClendon v. the Ohio habeas or other post-conviction review, we Sherman, 329 F.3d 490, 494 (6th Cir. 2003). Prior to reasoned, they must be part of direct review. Ibid. If determining the federal constitutional question of whether the they were part of direct review, White had a petitioner was entitled to counsel in filing his application to constitutional right to effective assistance of counsel. Id. reopen direct appeal, the White court determined whether a at 752-53, 584 N.E.2d 1204. As he had been denied such state procedural rule, 26(B), was part of direct or collateral assistance, we remanded for consideration of the merits review. As a panel of this Court recently explained: of his claims. Id. at 754, 584 N.E.2d 1204. The United States Supreme Court denied certiorari. Bagley v. White, [In White] [w]e first noted that “an attorney’s failure or 531 U.S. 940 . . . (2000) (mem.). refusal to abide by established time deadlines in handling a client’s appeal is conduct falling below the minimal Lambert v. Warden, Ross Correctional, No. 01-34222, 2003 standards of competency that federal case law has WL 22071466, at *3 (6th Cir. Sept. 2, 2003) (emphasis imposed upon counsel to satisfy constitutional added). standards.” Id. at 752 (citing Strickland v. Washington, 466 U.S. 668, 698 . . . (1984), and Ludwig v. United While several of our published cases have purported to States, 162 F.3d 456, 459 (6th Cir. 1998)). While the apply the rule of White in the AEDPA setting, see Bronaugh Ohio Public Defender indisputably and grossly failed to v. Ohio, 235 F.3d 280 (6th Cir. 2000); Searcy v. Carter, 246 abide the ninety-day deadline for 26(B) applications and F.3d 515, 519 (6th Cir. 2002); Miller v. Collins, 305 F.3d therefore rendered ineffective assistance of counsel, this 491, 493-95 (6th Cir. 2002); Griffin v. Rogers, 308 F.3d 647, conclusion alone does not establish a constitutional 655 (6th Cir. 2002), in each of those cases, the question of violation because a defendant only has a constitutional whether a Rule 26(B) motion was part of direct or collateral right to effective assistance of counsel when there is a review was decided in the context of the proper application of constitutional right to effective assistance of counsel the AEDPA statute of limitations and its tolling provision, when there is a constitutional right to assistance of 28 U.S.C. § 2244(d)(1)(A) & (d)(2).4 In determining whether counsel simpliciter. As there is such a constitutional a habeas petition is barred by the statute of limitations, a right only on direct and not on collateral review, the federal court is not provided with a state court decision on the resolution of [the] case depended on this classification of 26(B) applications. Ibid. (citing Pennsylvania v. 4 Finley, 481 U.S. 551, 555 . . . (1987)). We noted that Under 28 U.S.C. § 2244(d)(1)(A), a conviction becomes final for challenges to the constitutional effectiveness of appellate purposes of the one-year period of limitations upon “conclusion of direct counsel cannot be brought in Ohio habeas proceedings. review or the expiration of the time for seeking such review.” Section Ibid. (citing Manning v. Alexander, 912 F.2d 878, 882 2244(d)(2) provides that “[t]he tim e during which a properly filed application for State post-conviction or other collateral review with (6th Cir. 1990)). Then we concluded that such respect to the pertinent judgment or claim is pending shall not be counted challenges cannot be brought in any Ohio post- toward any period of limitation under this subsection.” In other words, conviction proceedings. Ibid. (citing Murnahan, 584 “[s]ection 2244 explicitly distinguishes between the conclusion of direct N.E.2d at 1208 (holding “that claims of ineffective review, after which the limitation period begins to run, 28 U.S.C. assistance of appellate counsel are not cognizable in post- § 2244(d )(1)(A), and post-conviction remedies, during which the limitation perio d is merely tolled, § 2244(d)(2).” McClendon v. Sherman, conviction proceedings pursuant to R.C. 2953.21.” 329 F.3d 490, 493 (6th Cir. 2003). No. 01-3875 Lopez v. Wilson 13 14 Lopez v. Wilson No. 01-3875
issue, to which it owes deference under AEDPA, because no 357 U.S. 214, 215 . . . (1958) (per curiam) (invalidating state court will have the opportunity to consider the issue. By state rule giving free transcripts only to defendants who contrast, in cases such as this, in which a federal court must could convince a trial judge that “justice will thereby be consider the nature of 26(B) application to determine whether promoted”); Burns v. Ohio, 360 U.S. 252 . . . (1959) a criminal defendant has the right to counsel in filing such an (invalidating state requirement that indigent defendants application, the federal court must grant AEDPA deference to pay fee before filing notice of appeal of conviction); the state court’s conclusion that the defendant was not entitled Lane v. Brown, 372 U.S. 477 . . . (1963) (invalidating to appointed counsel. Accordingly, even those post-AEDPA state procedure whereby meaningful appeal was possible Sixth Circuit decisions considering the nature of 26(B) only if public defender requested a transcript); Draper v. applications for the purpose of determining the timeliness of Washington, 372 U.S. 487 . . . (1963) (invalidating state habeas petitions do not engage in the analysis required here procedure providing for free transcript only for a – a determination of whether a state court’s decision is defendant who could satisfy the trial judge that his appeal contrary to or an unreasonable application of federal law – was not frivolous). and the holdings at those cases are properly limited to such cases. Just as a transcript may by rule or custom be a prerequisite to appellate review, the services of a lawyer We now turn to the “clearly established Federal law” at the will for virtually every layman be necessary to present an time of the Ohio Court of Appeals’ decision. Evitts v. Lucey, appeal in a form suitable for appellate consideration on 469 U.S. 387 (1985), which White itself relied upon, provides the merits. See Griffin, supra, 351 U.S. at 20 . . . . the best overview of the applicable Supreme Court precedent: Therefore, Douglas v. California, supra, recognized that the principles of Griffin required a State that afforded a Almost a century ago, the Court held that the right of appeal to make that appeal more than a Constitution does not require States to grant appeals as of “meaningless ritual” by supplying an indigent appellant right to criminal defendants seeking to review alleged in a criminal case with an attorney. 372 U.S. at 358 . . . . trial court errors. McKane v. Durston, 153 U.S. 684 . . . This right to counsel is limited to the first appeal as of (1894). Nonetheless, if a State has created appellate right, see Ross v. Moffitt, 417 U.S. 600 . . . (1974), and courts as “an integral part of the . . . system for finally the attorney need not advance every argument, regardless adjudicating the guilt or innocence of a defendant,” of merit, urged by the appellant, see Jones v. Barnes, 463 Griffin v. Illinois, 351 U.S., at 18 . . . , the procedures U.S. 745 . . . (1983). But the attorney must be available used in deciding appeals must comport with the demands to assist in preparing and submitting a brief to the of the Due Process and Equal Protection Clauses of the appellate court, Swenson v. Bosler, 386 U.S. 258 . . . Constitution. In Griffin itself, a transcript of the trial (1967) (per curiam), and must play the role of an active court proceedings was a prerequisite to a decision on the advocate, rather than a mere friend of the court assisting merits of an appeal. See id., at 13-14 . . . . We held that in a detached evaluation of the appellant’s claim. See the State must provide such a transcript to indigent Anders v. California, 386 U.S. 738 . . . (1967); see also criminal appellants who could not afford to buy one if Entsminger v. Iowa, 386 U.S. 748 . . . (1967). that was the only way to assure an “adequate and effective” appeal. Id. at 20 . . . ; see also Eskridge v. Evitts, 469 U.S. at 393-94. Washington State Board of Prison Terms and Paroles, No. 01-3875 Lopez v. Wilson 15 16 Lopez v. Wilson No. 01-3875
As Evitts’ canvassing of the relevant precedent reflects, the by an appellate court. We are dealing only with the first Supreme Court has never held that a criminal defendant has appeal, granted as a matter of right to rich and poor alike the right to assistance of counsel to file an application to (Cal. Penal Code §§ 1235, 1237), from a criminal reopen a direct appeal. The question becomes whether the conviction. facts of the present case are “materially indistinguishable” from one of the foregoing decisions but with a different Douglas, 372 U.S. at 356. result. See Williams, 529 U.S. at 406. None of the foregoing cases are factually analogous, however. To begin with, only In Evitts, the defendant’s retained counsel filed a timely a few of those cases actually deal with access to counsel per notice of appeal but failed to file the statement of appeal as se, and only two, Douglas v. California, 372 U.S. 353 (1963), required by a state rule of appellate procedure when he filed and Evitts, found the right to assistance of counsel on appeal the brief and record on appeal, resulting in dismissal of the as of right. In Douglas, the indigent defendants were denied appeal. Thus, the issue in Evitts was whether the Due Process their request for the assistance of counsel on appeal as of Clause of the Fourteenth Amendment guarantees the criminal right. The Douglas court found that the defendants were defendant the right to the effective assistance of counsel on his denied equal protection of the law where their one appeal of first appeal as of right. The Supreme Court held that it did. right was decided without the benefit of counsel. The Douglas Court analogized to Griffin v. Illinois, 351 U.S. 12 The Supreme Court found no right to appointed counsel in (1956): Ross v. Moffitt, 417 U.S. 600 (1974) and Pennsylvania v. Finley, 481 U.S. 551 (1987). In Ross, the defendant was In Griffin v. Illinois, we held that a State may not grant denied appointment of counsel for discretionary review, after appellate review in such a way as to discriminate against his convictions were affirmed on his appeals of right by the some convicted defendants on account of their poverty. state court of appeals. The Ross Court held that the rule of There, as in Draper v. Washington, 372 U.S. 487, . . . the Douglas did not extend to discretionary state appeals and for right to a free transcript on appeal was in issue. Here the petitions of certiorari. In Finley, the Supreme Court held that issue is whether or not an indigent shall be denied the a state law providing prisoners assistance of counsel in assistance of counsel on appeal. In either case the evil is collateral postconviction proceedings did not require full the same: discrimination against the indigent. For there procedural protections which the Constitution extends for trial can be no equal justice where the kind of an appeal a man and first appeal as of right. The Finley Court reasoned that enjoys ‘depends on the amount of money he has.’ Griffin “since a defendant has no constitutional right to counsel when v. Illinois, supra, at p. 19 . . . . pursuing a discretionary appeal on direct review of his conviction, a fortiorari, he has no such right when attacking Douglas, 372 U.S. at 355. Significantly, the Supreme Court a conviction that has long since become final upon exhaustion limited its holding as follows: of the appellate process.” Id. at 555.
We are not here concerned with problems that might Here, Lopez’s request for appointed counsel to file an arise from the denial of counsel for the preparation of a application to reopen his first appeal as of right is somewhere petition for discretionary or mandatory review beyond “beyond the stage in the appellate process at which the claims the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an have once been presented by a lawyer and passed upon appellate court.” Douglas, 372 U.S. at 356. Although a panel No. 01-3875 Lopez v. Wilson 17 18 Lopez v. Wilson No. 01-3875
of this Court upon de novo review has determined that such for purposes of determining whether the federal question a motion falls under the rubric of a direct appeal, under the presented. more deferential standard of review set forth in the AEDPA, it cannot be said that the Ohio Court of Appeals’ decision V. Conclusion denying the right to appointed counsel was contrary to “clearly established Federal law as determined by the For the foregoing reasons, the judgment of the district court Supreme Court,” because the result is not different from a denying Petitioner’s petition for writ of habeas corpus is case with materially indistinguishable facts. AFFIRMED. Petitioner’s motion to certify is DENIED.
In sum, as the district court held, the decision of the state appellate court denying Lopez’s request for appointment of counsel was not contrary to “clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). B. Motion to Certify The Warden has also asked us to certify to the Ohio Supreme Court the question of whether a Rule 26(B) motion to reopen is properly characterized as a civil, post-conviction proceeding for challenging a final judgment in a criminal case, or is instead part of the defendant’s first appeal as of right in a criminal case. Rightly or wrongly, see Lambert, 2003 WL 22071466, at *7-8, this question has already been addressed by this Circuit in White. Thus, a request for further clarification by the Ohio Supreme Court by this panel would be improper, because the only reason for this panel to certify a question would be to revisit the prior panel’s decision, which we cannot do. See Salmi v. Secretary of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“A panel of this Court cannot overrule the decision of another panel. The prior decision remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.”); see also 6th Cir. Rule 206(c) (stating that a published panel opinion is binding on all subsequent panels). In any event, we would not be bound by the state courts’ characterization of Rule 26(B) proceedings No. 01-3875 Lopez v. Wilson 19
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CONCURRENCE ___________________
R. GUY COLE, JR., Circuit Judge, concurring in the judgment. I concur only in the judgment reached by the majority and agree that Lopez’s petition for a writ of habeas corpus must be denied. The crucial inquiry in this case is whether the state’s decision to deny Lopez counsel with respect to his motion to reopen an appeal was contrary to clearly established federal law as determined by the United States Supreme Court. Because the Supreme Court has not established that criminal defendants are entitled to counsel in a motion to reopen an appeal nor that such a motion is part of a direct appeal, Lopez is not entitled to habeas relief pursuant to the AEDPA. Absent clearly established law by the Supreme Court with respect to those issues, the state court was not bound by this Circuit’s characterization of Rule 26(B) proceedings as part of a criminal defendant’s direct appeal.