State v. Durr

1997 Ohio 292, 77 Ohio St. 3d 444

• Court: Ohio Supreme Court
• Decided: February 19, 1997
• Docket: 1996-1581
• Status: Published

Opinion

[This opinion has been published in Ohio Official Reports at 77 Ohio St.3d 444.]

THE STATE OF OHIO, APPELLEE, V. DURR, APPELLANT. [Cite as State v. Durr, 1997-Ohio-292.] Appellate procedure—Application for reopening appeal from judgment and conviction based on claim of ineffective assistance of appellate counsel— Application denied when applicant fails to establish the existence of a colorable claim of ineffective assistance of appellate counsel— Application denied when untimely and barred by res judicata. (No. 96-1581—Submitted December 11, 1996—Decided February 19, 1997.) APPEAL from the Court of Appeals for Cuyahoga County, No. 57140. __________________ {¶ 1} Appellant, Darryl Durr, was convicted of one count of aggravated murder with specifications, and of kidnapping, aggravated robbery, and rape, each with a violence specification. He was sentenced to death. Upon appeal, the court of appeals affirmed the convictions and sentences. State v. Durr (Dec. 7, 1989), Cuyahoga App. No. 57140, unreported, 1989 WL 147626. This court also affirmed the convictions and sentences. State v. Durr (1991), 58 Ohio St.3d 86, 568 N.E.2d 674. {¶ 2} Appellant filed an application with the court of appeals pursuant to State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, for delayed reconsideration, alleging ineffective assistance of appellate counsel. The court of appeals denied the application for lack of a colorable claim. State v. Durr (July 6, 1994), Cuyahoga App. No. 57140, unreported. Appellant’s further appeal to this court was affirmed. State v. Durr (1994), 71 Ohio St.3d 395, 643 N.E.2d 1147. {¶ 3} Subsequently, on May 10, 1995, appellant filed an application for reopening in the court of appeals pursuant to App. R. 26(B), again alleging ineffective assistance of appellate counsel. The court of appeals denied the SUPREME COURT OF OHIO

application finding it, inter alia, to be untimely and barred by res judicata. This appeal followed. __________________ Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Carmen M. Marino, Assistant Prosecuting Attorney, for appellee. David H. Bodiker, Ohio Public Defender, and William S. Lazarow, Assistant Public Defender, for appellant. __________________ Per Curiam. {¶ 4} We affirm the judgment of the court of appeals denying appellant’s application for reopening. Appellant has failed to establish the existence of a colorable claim of ineffective assistance of appellate counsel under Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. We further reject appellant’s propositions of law raised before this court for the same reasons articulated by the court of appeals. Judgment affirmed. MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur. __________________