State v. Walker

2012 Ohio 604

• Court: Ohio Court of Appeals
• Decided: February 15, 2012
• Docket: 95974
• Status: Published

Opinion

[Cite as State v. Walker, 2012-Ohio-604.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 95974

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DARREN WALKER DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Common Pleas Court Case No. CR-536762 Application for Reopening Motion No. 450223

RELEASE DATE: February 15, 2012 FOR APPELLANT

Darren Walker Inmate No. 592-744 Mansfield Correctional Inst. 1150 N. Main Street Mansfield, OH 44901

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

By: Mark J. Mahoney Daniel T. Van Assistant Prosecuting Attorneys The Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 MARY J. BOYLE, J.:

{¶1} On December 9, 2011, the applicant, Darren Walker, pursuant to App.R.

26(B), applied to reopen this court’s judgment in State v. Walker, 8th Dist. No. 95974,

2011-Ohio-4239, 2011 WL 3806017, in which this court affirmed Walker’s convictions

for two counts of rape, two counts of kidnapping, and gross sexual imposition. Walker

maintains that his appellate counsel was ineffective for failing to raise various arguments.

For the following reasons, this court denies the application to reopen.

{¶2} App.R. 26(B)(1) and (2)(b) require applications claiming ineffective

assistance of appellate counsel to be filed within 90 days from journalization of the

decision unless the applicant shows good cause for filing at a later time. The December

2011 application was filed 106 days after this court’s decision on August 25, 2011.

Thus, it is untimely on its face. In an effort to establish good cause, Walker argues that

he did not have his transcripts and that he had trouble with the prison library in doing

research. {¶3} However, these do not establish good cause for untimely filing an application

to reopen. This court has repeatedly held that difficulty in obtaining the transcript does

not constitute good cause. In State v. Towns , 8th Dist. No. 71244, 1997 WL 661883

(Oct. 23, 1997), reopening disallowed 2000 WL 574470 (May 4, 2000), the applicant

endeavored to show good cause for untimely filing by arguing that his counsel was

uncooperative and refused to send him any documents concerning the case. This court

rejected that argument, ruling that “being a layman and experiencing delays in obtaining

records related to one’s conviction are not sufficient bases for establishing good cause for

untimely filing of an application for reopening.” (Slip Op. at 3.) State v. Bussey, 8th

Dist. No. 75301, 1999 WL 1087494 (Dec. 2, 1999), reopening disallowed 2000 WL

1146811 (Aug. 8, 2000); City of Newburgh Heights v. Chauncey, 8th Dist. No. 75465,

1999 WL 608801 (Aug. 12, 1999), reopening disallowed 2000 WL 33126876 (Oct. 20,

2000); State v. Blackmon, 8th Dist. No. 48787, 1985 WL 8563 (July 18, 1985), reopening

disallowed 2000 WL 1901274 (Oct. 25, 2000); State v. Sanchez, 8th Dist. No. 62796,

1994 WL 258669 (June 9, 1994), reopening disallowed 2001 WL 931654 (Aug. 16,

2001); State v. Chandler, 8th Dist. No. 59764, 1992 WL 41856 (Mar. 5, 1992), reopening

disallowed, 2001 WL 931661 (Aug. 13, 2001) — counsel’s delays in sending applicant

the transcript and refused access to parts of the transcript did not state good cause. {¶4} Furthermore, the courts have also repeatedly rejected the claim that limited

access to legal materials states good cause for untimely filing. Prison riots, lockdowns,

and other library limitations have been rejected as constituting good cause. State v.

Tucker, 73 Ohio St.3d 152, 1995-Ohio-2, 652 N.E.2d 720; State v. Kaszas, 8th Dist. Nos.

72546 and 72547, 1998 WL 598530 (Sept. 10, 1998), reopening disallowed, 2000 WL

1195676 (Aug. 14, 2000); State v. Hickman, 8th Dist. No. 72341, 1998 WL 213166 (Apr.

30, 1998), reopening disallowed, 2000 WL 1901272 (Dec. 13, 2000), and State v. Turner,

8th Dist. No. 55960, 1989 WL 139488 (Nov. 16, 1989), reopening disallowed, 2001 WL

1001014 (Aug. 20, 2001). Untimeliness alone is sufficient to dismiss the application.

{¶5} Moreover, Walker did not support his application with a “sworn statement of

the basis for the claim that appellate counsel’s representation was deficient” as required

by App.R. 26(B)(2)(d).

Accordingly, this court denies the application.

MARY J. BOYLE, JUDGE

MELODY J. STEWART, P.J., AND FRANK D. CELEBREZZE, JR., J., CONCUR