White v. Schotten

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 26, 2000
• Docket: 97-4066
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0036P (6th Cir.) File Name: 00a0036p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  FREDERICK WHITE,  Petitioner-Appellant,   No. 97-4066 v.  > JAMES SCHOTTEN, Warden,  Respondent-Appellee.  1

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 95-02801—Patricia A. Gaughan, District Judge. Argued: June 10, 1999 Decided and Filed: January 26, 2000 Before: KEITH, DAUGHTREY, and MOORE, Circuit Judges. _________________ COUNSEL ARGUED: Kort W. Gatterdam, PUBLIC DEFENDER’S OFFICE, OHIO PUBLIC DEFENDER COMMISSION, Columbus, Ohio, for Appellant. Stuart W. Harris, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Appellee. ON BRIEF: Kort W. Gatterdam, PUBLIC DEFENDER’S

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OFFICE, OHIO PUBLIC DEFENDER COMMISSION, cause to excuse any failure to comply with the procedural Columbus, Ohio, for Appellant. Stuart W. Harris, OFFICE requirements contained in Ohio Rule of Appellate Procedure OF THE ATTORNEY GENERAL, CORRECTIONS 26(B). Accordingly, we remand to the district court to LITIGATION SECTION, Columbus, Ohio, for Appellee. consider whether the petitioner has established that he was actually prejudiced by the alleged constitutional error and, if _________________ so, to review his constitutional claims on their merits. OPINION _________________ MARTHA CRAIG DAUGHTREY, Circuit Judge. Petitioner Frederick White appeals the district court’s dismissal of his habeas corpus petition, filed pursuant to 28 U.S.C. § 2254. In the petition, White challenges his 1989 state convictions for aggravated murder with a firearm specification, felonious assault with a firearm specification, and possession of a weapon under disability, alleging that his appellate counsel rendered constitutionally ineffective assistance. The district court dismissed the petition on the ground of procedural default, finding that the petitioner had failed to raise the issue of ineffective assistance of counsel within the time limit set by Ohio App. R. 26(B). The district court further found that White was unable to show cause and prejudice for the default. Under applicable Ohio law, a claim of ineffective assistance is raised by application to reopen the direct appeal. Rule 26(B) provides that the application must be filed within 90 days “from journalization of the appellate judgment.” In this case, the petitioner’s attorney filed the application some three years after the 90-day period had run. Because an application for reopening the direct appeal in Ohio is part of the direct appeal process, and because a defendant has a right to effective assistance of counsel during that stage of proceedings, we conclude that the petitioner in this case is able to show cause for his procedural default, i.e., counsel’s failure to file a timely application for reopening. However, the issue of whether the petitioner was prejudiced by the alleged constitutional error was not addressed by the district court and is not adequately briefed before us. Hence, we must remand the case to the district court to make that 18 White v. Schotten No. 97-4066 No. 97-4066 White v. Schotten 3

However, as previously stated, we conclude that the determination and, if it finds that the petitioner has petitioner has shown cause for his default, and if he is able to established prejudice, to review the petitioner’s constitutional demonstrate that he was actually prejudiced by the alleged claims on their merits. constitutional error, he is entitled to federal review of the merits of his constitutional claims. Because the issue of PROCEDURAL AND FACTUAL BACKGROUND prejudice is not adequately briefed, we remand for the district court to consider the issue, keeping in mind the following The convictions underlying Frederick White’s federal guidelines for such analysis articulated in Maupin, which the petition for habeas corpus arise from the shooting death of his court gleaned from various Supreme Court cases: (1) “the former wife, Kimberly Hawkins White, as she left work. The prejudice that must be shown must be a result of the alleged Ohio Court of Appeals, affirming the petitioner’s convictions constitutional violation and not a result of the trial counsel’s and sentence on direct appeal, stated the facts of this case as failure to meet state procedural guidelines;” (2) “the burden follows: is on the petitioner to show that he was [actually] prejudiced by the alleged constitutional error..., not merely a possibility [Kimberly Hawkins] White worked as a nurse's assistant of prejudice;” and (3) “in analyzing a petitioner’s contention at the Mount St. Joseph Nursing Home. At of prejudice, the court should assume that the petitioner has approximately 7:00 a.m., November 5, 1988, White left stated a meritorious constitutional claim.” 785 F.2d at 139 the nursing home with Jacqueline Glenn and walked (citations omitted). Of course, if the district court finds that toward the van of Richard Gibson, a friend of Glenn's, the petitioner has established prejudice, it should proceed to who was to drive the women home. Glenn testified she decide the merits of his constitutional claims. entered the van through the front passenger door and, as she began to unlock the rear sliding door, White Finally, we note the petitioner’s argument that Rule 26(B) screamed and pushed Glenn into the van. The women is unconstitutional as applied in Ohio because it deprives fell onto the floor between the seats. Glenn heard an indigent, incarcerated, uncounseled inmates due process and initial shot and heard White shout, "Wait, Rick, wait." equal protection of the laws. These claims were not raised in (Tr. 110). According to Glenn, this shot hit White in the the district court, however. “When a party fails to present an leg. Glenn told the jury White's assailant entered the van argument to the district court, we have discretion to resolve and again shot White, who stated "Oh, Rick." (Tr. 113). the issue only where the proper resolution is beyond any Glenn, who received powder burns during the shooting, doubt, or where injustice might otherwise result.” See testified she heard three to four shots. She also observed Enertech Elec., Inc. v. Mahoning County Comm’r, 85 F.3d the man's face as he left the van. 257, 261 (6th Cir. 1996). We decline, in this instance, to treat these issues as a matter of initial review. In her statement to police immediately after the shooting, Glenn indicated she did not see the man who shot White, CONCLUSION nor did this statement include White's identification of her assailant. Two days later, Glenn went to the police We conclude that Ohio criminal defendants have a federal station to amplify her initial statement. She then told constitutional right to effective assistance of counsel during police of White's references to her assailant as "Rick" and an application for reopening and that the petitioner’s counsel described the man's clothing. Glenn subsequently in this case was constitutionally ineffective in failing to file selected the defendant's picture from an array of five such an application in a timely fashion, thus constituting photographs and identified him as the man who shot White. 4 White v. Schotten No. 97-4066 No. 97-4066 White v. Schotten 17

Richard Gibson, the driver of the van, corroborated to entertain the claim. See id. In analyzing such a claim, the Glenn's testimony but was unable to identify the inquiry is a narrow one, where the petitioner must "point to a assailant. Gibson told the jury that, as White lay constitutional violation that probably resulted in the wounded in the van, she stated her husband fired the conviction of one who was actually innocent." Ritchie v. shots. Euclid police officer Jeffrey Swider responded to Eberhart, 11 F.3d. 587, 593 (6th Cir.1993); accord Schlup v. the nursing home minutes after the shooting. Swider Delo, 513 U.S. 298, 321 (1997); Murray v. Carrier, 477 U.S. testified he asked White who shot her and White 478, 496 (1986). The petitioner argues that the following responded, "My husband." (Tr. 180). Sister Mary evidence shows that he is actually innocent: Raphael, a nun at the nursing home, also heard White identify her husband as the assailant. White later died in There were two eyewitnesses to the crime. Richard the hospital. Gibson testified he could not identify the perpetrator. Jackie Glenn identified Mr. White but admitted she told Cuyahoga County Coroner Elizabeth Balraj performed an the police after the incident that she did not see the autopsy on White's body. Her examination revealed a assailant because she was pushed aside, out of the way, gunshot wound to the left leg as well as an abdominal and had her head down. The State’s evidence is wound with a perforation of the aorta. Balraj opined contradicted by the evidence presented by White. Mr. White hemorrhaged to death. Barbara Campbell, a White produced credible evidence at his trial that he was member of the coroner's trace evidence department, in Columbus, Ohio at the time of his ex-wife’s murder. testified that gun shot residue on White's palms indicated In addition to the alibi testimony from his wife, Mr. the weapon was fired in close proximity to White. White introduced testimony from two disinterested witnesses who testified to seeing Mr. White the night Kathy Kozel, an assistant at Mount St. Joseph, testified before and the morning of the murder in Columbus, that, as she arrived for work, she observed a man Ohio. . . . The State of Ohio convicted Mr. White based standing outside the nursing home approximately ten upon his past conduct, bad character, hearsay and minutes before the shooting. Kozel stated she was 12-13 prosecutorial misconduct. feet from the man and that she looked at his face. Kozel did not see the man fire a gun. Three months later, Kozel We conclude that the petitioner has not made a colorable selected the defendant's photo from an array as the man showing of actual innocence under the Carrier/Schlup she saw outside the nursing home. standard. As the petitioner acknowledges, this evidence was presented to the jury, which chose to credit the state’s Charon Hawkins, the victim's daughter, testified the evidence over that offered by the petitioner. Although we defendant telephoned her mother the evening before she might agree with the Ohio Court of Appeals’s assessment that was killed. According to Hawkins, her mother twice the prosecutor violated the rules of evidence in this case, there refused to speak with the defendant, who finally is no basis for us to second-guess the jury’s credibility threatened "to do something bad" to her mother. (Tr. determination and its resulting verdict. Accordingly, because 235). The daughter also averred the defendant beat her a miscarriage of justice will not result from the court's failure mother many times. to review this claim, it does not excuse the petitioner’s failure to comply with state procedural rules. See Ritchie, 11 F.3d at Vivian Faylor Jeff, a counselor at the Cuyahoga County 593. Witness & Family Violence Center, testified she met with White on six to eight occasions and that White was 16 White v. Schotten No. 97-4066 No. 97-4066 White v. Schotten 5

commensurate right to effective assistance from that counsel. afraid of the defendant. Jeff indicated White had filed a However, as this court's decision in Manning v. Alexander, complaint against the defendant and sought a protective 912 F.2d 878, 882 (6th Cir. 1990), made clear, Ohio law does order and divorce from him. Mabel Jean Edwards, also not consider an attack on the adequacy of appellate counsel to a nursing home employee, told the jury she discussed be proper in a state habeas proceeding. See Manning, 912 White's domestic problems with the defendant. Edwards F.2d at 882 (citing Manning v. Alexander, 553 N.E.2d 264 averred she "often" saw White with black eyes and (Ohio 1990); In re: Petition of Brown, 551 N.E.2d 954 bruises on her neck. According to Edwards, White told (1990)). Furthermore, Murnahan emphatically holds that any her the defendant once shot at her and a friend. such attack cannot be considered part of an Ohio post- conviction matter. Euclid police officer Patrick Lynch testified the defendant's auto was found north of Columbus on the If the application for delayed reconsideration is neither part northbound side of Interstate I-71 at 2:14 a.m. the day of a state habeas nor state post-conviction proceeding, it must after the shooting. The left rear tire on the vehicle was be a continuation of activities related to the direct appeal flat. Lynch told the jury that highway patrol reports from itself. Because a defendant is entitled to effective assistance the previous day did not refer to the auto. In February of counsel on direct appeal, see Evitts v. Lucey, 469 U.S. 387, 1989, police arrested the defendant in California and 396 (1985), such an individual must be accorded effective brought him back to Cleveland for trial. assistance of counsel throughout all phases of that stage of the criminal proceedings. The failure of the Ohio Public The defendant denied killing his former wife and told the Defender to offer such constitutionally-mandated counsel jury he was in Columbus at the time of the shooting. He excuses the failure of the petitioner to abide by the timing claimed he spent the late afternoon of November 4, 1988 requirements of applicable procedural rules. with his current wife, Kimberly Fox White, until she went to work that night. According to the defendant, he Therefore, upon establishing that he was actually prejudiced left for Cleveland at 7:00 p.m. to visit relatives after by any ineffective representation, the petitioner is entitled to learning about the death of an uncle. The defendant present to a federal court for merit review those claims that stated his auto had a flat tire on Interstate 71 just outside should have been brought to the attention of the Ohio state Columbus and he walked to a nearby convenience store courts throughout the course of the petitioner's legal battles. to phone for assistance. Unable to secure towing services, See Coleman, 501 U.S. at 750. Having found no cause for the defendant went to a laundromat/restaurant named White’s default, neither the magistrate judge nor the district "Dirty Dungarees" where he met a woman, Rhonda judge addressed the prejudice prong. Accordingly, unless Simon. The defendant introduced himself to her as there is another basis upon which to excuse the petitioner’s "Tony Love", a name he used as a radio disc jockey. The procedural default, we must remand to the district court to woman later drove him to his apartment where she left decide whether the petitioner can establish prejudice. her telephone number on a magazine. The magazine was introduced into evidence. The defendant gave Simon a White claims that there is such an alternative basis to record album for bringing him home. The defendant excuse his procedural default, arguing that even if this court testified that, after Brown left, a neighbor, Andrea Bell, finds that he has not shown cause and prejudice, the visited him. The defendant asked her to order a pizza for procedural default should nonetheless be excused because a him from her apartment since his telephone was not fundamental miscarriage of justice would result from a failure working. 6 White v. Schotten No. 97-4066 No. 97-4066 White v. Schotten 15

According to the defendant, he and his wife later tried to assistance of appellate counsel in his direct appeal, it is clear retrieve his auto but the battery was dead. They spent the from other portions of his brief, the affidavit from his counsel rest of the evening watching videotaped movies. The at the Ohio Public Defender’s Office, his arguments before defendant told the jury he awoke the morning of the the state courts, and simple logic that the reason the slaying at 8:15 and went on errands with his wife. He application for reopening was filed three years late was the claimed that, as he left the apartment complex on failure of his attorney to file that pleading in compliance with errands, he spoke with Bell about the pizza not arriving the rule. As evidenced in the present case and as noted in the previous night. Later that day the defendant learned Paris v. Turner, No. 97-4129, 1999 WL 357815 (6th Cir. his former wife had been killed. He acknowledged he (Ohio) May 26, 1999), the public defender’s office has left for California after police visited his mother in repeatedly failed to preserve the right of criminal defendants Cleveland. The defendant stated the police told his to challenge the constitutionality of their convictions due to mother they would shoot him. its disregard, whether intentional or because of inadequate funding and staffing, of filing deadlines and procedural Rhonda Simon corroborated the defendant's testimony as barriers. to meeting "Tony Love" at 8:00 p.m. on November 4, 1988 at "Dirty Dungarees." She verified that he told her Without question, an attorney's failure or refusal to abide by of his flat tire and that she drove him to his apartment established time deadlines in handling a client's appeal is where she left her phone number on a magazine. Simon conduct falling below the minimal standards of competency averred she arrived at her house at approximately 10:00 that federal case law has imposed upon counsel to satisfy p.m. Andrea Bell also agreed she visited the defendant constitutional safeguards. See Strickland v. Washington, 466 at his apartment "on a Friday evening in early November" U.S. 668, 698 (1984) (a finding of ineffective assistance of and learned of his flat tire. According to Bell, she spoke counsel requires first that an attorney's representation fall with the defendant the next morning between 8:30 and below an objective standard of reasonableness). See also 9:00 as he left the apartment complex with his wife in her Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998) auto. Kimberly Fox White corroborated the defendant's (failure to perfect a direct appeal in derogation of a request to testimony and claimed he was with her in the early do so is a per se violation of the Sixth Amendment, regardless morning hours of November 5, 1988. of whether the appeal would have been successful). In fact, such deficiencies have been held to constitute ineffective Private investigator John Younkin told the jury that the assistance of counsel per se. See Rodriguez v. United States, distance from defendant's auto on Interstate 71 to the 395 U.S. 327, 330 (1969) ("Those whose right to appeal has nursing home where White was shot equaled 139.3 been frustrated should be treated exactly like any other miles. According to Younkin, it requires two hours and appellant; they should not be given an additional hurdle to nineteen minutes to drive this distance at the posted clear just because their rights were violated at some earlier speed limits. stage of the proceedings."). The defendant offered two character witnesses on his The State of Ohio argues, nevertheless, that a petitioner behalf. Glenn Frazier, a pastor at the Gospel Palace such as White has no constitutional right to counsel at any Church and manager of a radio station where defendant stage of criminal proceedings beyond a direct appeal as of hosted an inspirational program, testified to the right. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). defendant's honesty. Bishop F.E. Perry stated the Without a right to counsel, the petitioner also has no 14 White v. Schotten No. 97-4066 No. 97-4066 White v. Schotten 7

cause to excuse filing of an application for reopening over one defendant had been a minister at their church and was a year after journalization of appellate judgment); State v. "family" man. Perry described the defendant as truthful. Klein, No. 49260 (Ohio App. 8 Dist., March 15, 1994) (holding pro se status and ignorance of law did not constitute In rebuttal, the state called Deborah Brown who swore “good cause” to excuse filing of application for reopening she spoke with the defendant in Cleveland on the five months after journalization and two months after afternoon before the shooting between 3:40 p.m. and effective date of new Rule 26(B)); State v. Wright, No. 93 CA 3:55 p.m. The defendant allegedly asked Brown whether 2110, 1994 WL 398805 (Ohio App. 4 Dist., July 29, 1994) she had seen White. Patricia Laster also averred she saw (holding state’s failure to respond to an application for the defendant in his auto between 3:00 p.m. and 4:00 reopening constitutes “good cause”); State v. Fields, No. 95 p.m. on November 4, 1988. Both women testified they CA-08-048 (Ohio App. 5 Dist., April 21, 1994) (same); State had observed defendant strike White on previous v. Wright, No. 93 CA 2110, 1994 WL 398805 (Ohio App. 4 occasions. Dist., July 29, 1994) (same). Nonetheless, we recognize that the rule is relatively new and acknowledge that it may take State v. White, No. 1991 WL 8581 at *1-*3 (Ohio Ct. App., some time for the Ohio courts to achieve consensus. Jan. 31, 1991), aff'd, 647 N.E.2d 787 (Ohio 1995).

In any event, we need not focus on whether the good cause On May 12, 1989, a jury found White guilty of one count exception to Rule 26(B) constitutes an independent and of aggravated murder with a firearm specification and two adequate state ground, because we conclude, upon counts of felonious assault with firearm specifications. On consideration of the fourth Maupin factor, that the petitioner May 15, 1989, the trial court sentenced him to 20 years to life has established cause for his failure to follow the state for aggravated murder, three years for the firearms procedural rule. See Coleman v. Thompson, 501 U.S. 722, specification, and 8-to-15 years on each count of felonious 750 (1991) (“In all cases in which a state prisoner has assault, all to be served consecutively. On January 31, 1991, defaulted his federal claims in state court pursuant to an the Ohio Court of Appeals overruled the petitioner’s independent and adequate state procedural rule, federal assignments of error, but sua sponte ordered the trial court to habeas review of the claims is barred unless the prisoner can vacate one of his convictions for felonious assault under the demonstrate cause for the default and actual prejudice as a allied offenses doctrine. The court of appeals’s decision was result of the alleged violation of federal law, or demonstrate journalized on February 11, 1991. that failure to consider the claims will result in a fundamental miscarriage of justice.”) The district court, through the Although the petitioner obtained representation from the adoption of the magistrate judge’s report and Office of the Ohio Public Defender in 1991, the attorney recommendation, held that ineffective assistance of appellate assigned to White’s case did not file an application for counsel did not serve as cause because”[c]ounsel’s failure to reopening alleging that his appellate counsel had rendered file a timely application for reopening because he had a heavy ineffective assistance in failing to raise four assignments of case load does not constitute an objective factor external to error until three years later, on February 16, 1994. The court the defense.” We disagree. The external cause for the of appeals denied White’s application for reopening, finding petitioner’s non-compliance with Rule 26(B) is provided by it to be untimely based on Ohio App. R. 26(B), which the continued deficiencies in the office of the Ohio Public provides: Defender. Although the petitioner states in his appellate brief that the cause for his procedural default was ineffective A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and 8 White v. Schotten No. 97-4066 No. 97-4066 White v. Schotten 13

sentence, based on a claim of ineffective assistance of cert. denied, 120 S.Ct. 110 (1999), “[t]he alternative holding appellate counsel. An application for reopening shall be thus does not require us to disregard the state court’s finding filed in the court of appeals where the appeal was of procedural bar.” decided within ninety days from journalization of the appellate judgment unless the application shows good We turn next to the third Maupin factor, which requires us cause for filing at a later time. to consider whether the state procedural rule is an adequate and independent state ground to foreclose federal relief. Such The petitioner attached to his application for reopening an a rule is adequate if it is regularly or consistently applied by affidavit from his attorney stating that he had been assigned the state court, see Johnson v. Mississippi, 486 U.S. 578, 587 White’s case in 1991 but had been unable to review the merits (1988), and is independent if it does not "depend[ ] on a of the case until late 1993, as a result of his office’s federal constitutional ruling." Ake v. Oklahoma, 470 U.S. 68, “overwhelming caseload” and his own “personal heavy 75 (1985); see also Mapes v. Coyle, 171 F.3d 408, 421 (6th caseload.” White’s counsel argued that his heavy caseload Cir. 1999), petition for cert. filed, 68 USLW 3116 (July 29, served as “good cause,” as that phrase is used in Rule 26(B), 1999) No. 99-203) (“[T]he fact that a petitioner has not to excuse his tardiness. The Ohio Court of Appeals rejected complied with a state procedural rule cannot bar federal that argument, stating that “an applicant’s ignorance of App. review of constitutional claims if the state rule is not ‘firmly R. 26(B) or its procedural requirements will not establish established and regularly followed.’”) (internal quotation good cause for the untimely filing of an application for marks and citation omitted)). reopening,” and that “an ‘office’s overwhelming caseload and my personal heavy caseload’ does not establish good cause White argues that the “good cause” requirement of Ohio’s for the untimely filing of an application for reopening as App. R. 26(B) does not constitute an adequate and brought pursuant to App. R. 26(B).” The Ohio Supreme independent state ground because it is neither firmly Court affirmed that decision, see State v. White, 647 N.E.2d established nor uniformly applied by the Ohio courts. In 787 (Ohio 1995), and the United States Supreme Court denied support of his argument, White cites to instances in which certiorari. See White v. Ohio, 516 U.S. 892 (1995). courts have allowed delays well after the 90-day deadline and also argues that Rule 26(B) does not provide any clear White then filed a petition for writ of habeas corpus in the guidelines for determining when a petitioner can file his United States District Court for the Northern District of Ohio, petition beyond the 90-day filing period. raising the following claims: A review of the Ohio court of appeals cases attached to (1) violation of petitioner’s rights to due process and a Petitioner’s brief reveals that the state courts have not fair trial as guaranteed by the Fifth, Sixth, and Fourteenth achieved consensus on what constitutes “good cause” to Amendments to the United States Constitution on the excuse non-compliance with Rule 26(B). See, e.g., State v. grounds of prosecutorial misconduct; (2) petitioner’s McCarter, No. 62346 (Ohio App. 8 Dist., Aug. 12, 1994) Fifth and Fourteenth Amendment rights against self- (holding pro se status and ignorance of the law did not incrimination, to due process and a fair trial were denied constitute “good cause” to excuse filing of application for when the trial court repeatedly allowed introduction of reopening almost three years after journalization and seven other acts evidence and extrinsic evidence of petitioner’s months after effective date of new Rule 26(B)); State v. character to be presented to the jury; (3) petitioner’s Nitenson, No. 91 CA 796, 1994 WL 69894 (Ohio App. 4 Sixth and Fourteenth Amendment rights to confrontation Dist., Feb. 24, 1994) (holding pro se status constitutes good 12 White v. Schotten No. 97-4066 No. 97-4066 White v. Schotten 9

acts testimony, hearsay evidence, and extrinsic evidence and cross-examination were denied when the prosecution to impeach defendant’s character. In addition, this court was permitted to introduce hearsay evidence in the form addressed the issue of prosecutorial misconduct in light of prior statements made by the decedent; and (4) of the harmless error rule (Crim. R. 52(A)) and held that: petitioner’s Sixth and Fourteenth amendment rights to “Although the prosecutor repeatedly violated the rules of effective assistance of appellate counsel were denied evidence in this case, we are compelled to find these when: [a] appellate counsel failed to raise an issue on errors harmless in light of the overwhelming evidence of appeal that but for counsel’s failure there is a reasonable the defendant’s guilt. State v. Abrams (1974), 39 Ohio probability that the result of the appeal would have been St.2d 53; Chapman v. California (1967), 386 U.S. different and, [b] Ohio provides no remedy for 18. . . . ” vindication of a denial of the defendant’s right to the effective assistance of counsel. Id. at 4-5. The case was referred to a magistrate judge, who issued a White argues that the appeals court’s alternative holding – report and recommended that the petition be dismissed that his claims would be barred by res judicata even if they because the claims were procedurally defaulted under Ohio were not procedurally barred -- constitutes a decision on the App. Rule 26(B) and because the petitioner was unable to merits 1and that his claims, therefore, are not procedurally show cause and prejudice for the default. Over the petitioner’s barred. We cannot agree. As the Supreme Court has objections, the district court adopted the magistrate judge’s explained, “a state court need not fear reaching the merits of report and recommendation and dismissed the petition based a federal claim in an alternative holding. By its very on procedural default. This appeal followed. definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a ANALYSIS sufficient basis for the state court’s judgment, even when the state court also relies on federal law.” Harris v. Reed, 489 White appeals the district court’s dismissal of his habeas U.S. 255, 264 n.10 (1989) (emphasis in original); accord corpus petition on the basis of procedural default. In Sochor v. Florida, 504 U.S. 527, 533 (1992). As we considering a district court’s disposition of a habeas petition, concluded in Coe v. Bell, 161 F.3d 320, 330 (6th Cir. 1998), we review the district court’s legal conclusion de novo, and its factual findings for clear error. See Carpenter v. Mohr, 163 F.3d 938, 942-43 (6th Cir. 1998), cert. granted, 120 S.Ct. 444 1 (1999). He argues further that his application for reopening was a nullity because the court held that it had already decided his claims on direct Under Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986), appeal. A review of petitioner’s direct appeal brief and the appeals this circuit utilizes the following four-part analysis when the court’s resolution reveals that the court had indeed decided the merits of petitioner’s claims regarding the admission of other acts testimony, state argues that a federal habeas claim has been procedurally hearsay evidence, and extensive evidence to impeach his credibility, but defaulted in state court: (1) whether there is a procedural rule those claims had only been framed and ruled upon as violations of state that is applicable to the petitioner's claim and whether the law. The import of the claim raised in the application for reopening was petitioner failed to follow this rule; (2) whether the state that White’s appellate counsel rendered ineffective assistance in failing courts actually enforced the state procedural rule; (3) whether to raise those claims as violations of federal law. Indeed, the petitioner the state procedural rule is an adequate and independent state does not contend that he raised those claims as violations of federal law in his direct appeal, but instead that this court should deem it so based on ground to foreclose federal relief; and if so (4) whether the the court of appeals’s language in denying the application for reopening. 10 White v. Schotten No. 97-4066 No. 97-4066 White v. Schotten 11

petitioner has established cause for his failure to follow the until February 16, 1994, more than three years after rule and prejudice by the alleged constitutional error. journalization of the appellate judgment, one year and eleven months after the announcement of State v. Murnahan (1992), The petitioner contends that none of the first three factors 63 Ohio St. 3d 60, and more than seven months after the of the Maupin test have been met. He also argues, in the effective date of App. R. 26(B). On its face, the application alternative, that even if those three factors have been satisfied, for reopening is untimely.” State of Ohio v. Frederick White, he is able to show cause and prejudice for his default under No. 57944 slip op. at 1-2 (Ohio Ct. App., Oct. 19, 1994). We the fourth factor, thereby entitling him to federal court review thus conclude that there was an applicable rule in place and of the merits of his habeas corpus claims. He also argues that that White failed to follow it. the court may excuse his procedural default because failure to address the merits of his constitutional claims will result in a Turning to the second Maupin factor, we must consider fundamental miscarriage of justice. We consider each of the whether the state courts actually enforced the state procedural four Maupin factors in turn, addressing petitioner’s arguments rule. The Ohio Court of Appeals held that it was compelled in the process. to deny the petitioner’s application for reopening because it was untimely under Rule 26(B) and no good cause existed to The first Maupin factor requires us to consider whether excuse that untimeliness. The court also said: there is a procedural rule that is applicable to the petitioner's claim and whether he failed to follow that rule. The petitioner Notwithstanding the fact that the application for argues that there was no procedural rule applicable to his reopening is untimely, a substantive review of the claim because Ohio’s App. R. 26(B) was not in effect at the applicant’s supporting memorandum clearly time his direct appeal was decided on January 31, 1991, and demonstrates that res judicata prevents the reopening of he filed an application to reopen his appeal as soon as the the appellate judgment that was rendered in State v. claim of appellate ineffectiveness was discovered. We find White (Jan. 31, 1991), Cuyahoga App. No. 57944, this argument unmeritorious. Although White is correct that unreported. The doctrine of res judicata prohibits a prior to July 1, 1993, Rule 26 did not contain a distinct defendant from relitigating any defense or claim of error provision for ineffective assistance of counsel claims, it did that has been previously raised on direct appeal. State v. set forth a ten-day time limit for the "application for Perry, 10 Ohio St. 2d 175 (Ohio 1967). . . . In an attempt reconsideration of any cause or motion submitted on appeal." to reopen the appellate judgment that was rendered by Following the Ohio Supreme Court's recommendation that the this Court, the applicant raises four proposed legislature adopt an amendment to better serve defendants assignments of error which appellate counsel allegedly who allege ineffective assistance of appellate counsel, see failed to argue upon appeal. These four proposed State v. Murnahan, 584 N.E.2d 1204 (Ohio 1992), Rule 26(B) assignments of error address the following issues: (1) was enacted to provide a 90-day limit for ineffective other acts testimony (Evid. R. 404); (2) hearsay evidence assistance of appellate counsel claims. (Evid. R. 801); (3) extensive evidence to impeach defendant’s character (Evid. R. 608); and (4) Rule 26(B) is clearly applicable to the petitioner's claim and prosecutorial misconduct. This court, however, has would have required White to file his motion to reopen within previously examined upon direct appeal each of the 90 days of its effective date, July 1, 1993. However, as the applicant’s four proposed assignments of error. Through Ohio Court of Appeals noted in denying White’s motion to the fourth, fifth, and sixth assignments of error as raised reopen, “[t]he application for reopening ... was not filed ... on direct appeal, this Court reviewed the issues of other