Lopez v. Wilson

• Decision Date: 15 January 2004
• Docket Number: No. 01-3875.,01-3875.
• Parties: Fernando LOPEZ, Petitioner-Appellant, v. Julius WILSON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

355 F.3d 931

Fernando LOPEZ, Petitioner-Appellant, v. Julius WILSON, Warden, Respondent-Appellee.

No. 01-3875.

United States Court of Appeals, Sixth Circuit.

Argued September 16, 2003.

Decided and Filed January 15, 2004.

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Robert D. Little (argued and briefed), Law Office of Robert Little, Maplewood, New Jersey, for Appellant.

Douglas R. Cole (argued), Office of the Attorney General of Ohio, Columbus, Ohio, for Appellee.

Before: SUHRHEINRICH, COLE, and ROGERS, Circuit Judges.

SUHRHEINRICH, J., delivered the opinion of the court, in which ROGERS, J., joined. COLE, J. (p. 942), delivered a separate opinion concurring in the judgment.

OPINION

SUHRHEINRICH, Circuit Judge.

I. Introduction

Under Rule 26(B) of the Ohio Rules of Appellate Procedure, an Ohio defendant seeking to file an ineffective assistance of appellate counsel claim must file an application to reopen in the state court of appeals where the appeal was decided rather than in a state trial court. In White v. Schotten, 201 F.3d 743, 752-53 (6th Cir.), cert. denied, 531 U.S. 940, 121 S.Ct. 332, 148 L.Ed.2d 267 (2000), this Court held that an application to reopen appeal under Rule 26(B) of the Ohio Rules of Appellate Procedure is part of a criminal defendant's direct appeal, rather than part of the state's post-conviction process. The difference matters because a defendant is constitutionally entitled to counsel only during the direct appeal process. Compare Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (holding that a defendant is entitled to effective assistance of counsel on direct appeal), with Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (holding that a defendant is not constitutionally entitled to counsel at any stage of criminal proceedings beyond a direct appeal as of right). Based on White, Petitioner Fernando Lopez claims in this habeas action that the state court's denial of his request for appointment of counsel to file a Rule 26(B) motion violated his federal constitutional rights. Lopez appeals from the order of the district court denying his petition for writ of habeas corpus on this ground. See 28 U.S.C. § 2254. This Court granted a certificate of appealability on that issue.

For the reasons that follow, we conclude that White is not controlling in this case, because the White decision predates the AEDPA,¹ which applies here, and that under the AEDPA, the state court's decision was not contrary to clearly established Federal law. We hold that the district court did not err in denying the writ.

II. Background

A. Rule 26(B)

On July 1, 1993, Rule 26(B) of the Ohio Rules of Appellate Procedure took effect. That rule provides in relevant part:

A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of 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 appellate judgment unless the applicant shows good cause for filing at a later time.

The Ohio Supreme Court adopted this rule after its decision in State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992). In Murnahan, counsel on direct appeal submitted an Anders brief and was permitted to withdraw. Murnahan filed a pro se brief, but the Ohio Court of Appeals rejected his appeal. Murnahan next sought post-conviction relief in the state trial court under Ohio Rev.Code § 2953.21, claiming that his appellate counsel had been ineffective. The Ohio Supreme Court held that ineffective assistance of appellate claims are not cognizable in post-conviction proceedings pursuant to Ohio Rev.Code. § 2953.21, because it would be improper for an inferior court to rule on the adequacy of a proceeding in a superior appellate court. The Court held that a defendant had a remedy nonetheless, by raising such claims in the Ohio appellate courts under the then-extant version of Rule 26. Murnahan 584 N.E.2d at 1209 n. 3. Although by its terms Rule 26 seems to permit only reconsideration of "any cause or motion originally submitted on appeal," the Ohio Supreme Court "construe[d] claims of ineffective assistance of appellate counsel to be tantamount to constitutional claims that should have been presented on appeal," and thus within the scope of the rule. Id.

At the same time, the Murnahan court recognized the imperfect fit between Rule 26 and ineffective assistance of appellate claims and recommended that Rule 26 be amended. Id. at 1209 n. 6. In response, the Ohio Supreme Court amended the rule in 1993, adding the above-quoted subsection.² However, neither the Ohio Supreme Court nor the new rule indicated whether such proceedings were to be treated as part of direct or collateral review.

This Court did so in White, supra. Counsel in that case did not file a Rule 26(B) application until three years after the ninety-day limit had expired. Noting that an attorney's failure to meet a deadline in handling a client's appeal falls below minimal standards of competency imposed on counsel to satisfy constitutional safeguards, and that a defendant only has a constitutional right to assistance of counsel on direct appeal, the question became whether Rule 26(B) applications were part of direct or collateral review. The White court concluded that an application to reopen appeal under Rule 26(B) is part of a criminal defendant's direct appeal, and because of that, counsel was constitutionally required.

The State of Ohio argues ... that a petitioner such as White has no constitutional right to counsel at any stage of criminal proceedings beyond a direct appeal as of right. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 ... (1987). Without a right to counsel, the petitioner also has no commensurate right to effective assistance from that counsel. However, as this court's decision in Manning v. Alexander, 912 F.2d 878, 882 (6th Cir. 1990), made clear, Ohio law does not consider an attack on the adequacy of appellate counsel to be proper in a state habeas proceeding. See Manning, 912 F.2d at 882 (citing Manning v. Alexander, 50 Ohio St.3d 127, 553 N.E.2d 264 (Ohio1990); In re: Petition of Brown, 49 Ohio St.3d 222, 551 N.E.2d 954 (1990)). Furthermore, Murnahan emphatically holds that any such attack cannot be considered part of an Ohio post-conviction matter.

If the application for delayed reconsideration is neither part of a state habeas nor state post-conviction proceeding, it must be a continuation of activities related to the direct appeal itself. Because a defendant is entitled to effective assistance of counsel on direct appeal, see Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 ... (1985), such an individual must be accorded effective assistance of counsel throughout all phases of that stage of the criminal proceedings.

White, 201 F.3d at 752-53.

B. Procedural History

Lopez was convicted in 1998 of three counts of rape and three counts of gross sexual imposition. The lower courts sentenced him to terms of life imprisonment on the rape counts and three years of imprisonment on each of the remaining counts. The Ohio Court of Appeals affirmed the convictions and sentences on direct appeal. State v. Lopez, No. 74096, 1999 WL 304527 (Ohio App.1999). Lopez was represented by counsel during that appeal.

In December 1999, more than six months after the state court of appeals issued its judgment, Lopez filed a pro se application to reopen his appeal under Ohio R.App. P. 26(B), alleging that his lawyer in his direct appeal was 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 appeal to be transcribed and filed with the court. On May 11, 2000, the Ohio Court of Appeals denied Lopez's motion to reopen the appeal and denied the motion for appointment of counsel, finding that Lopez had not shown that his original appellate lawyer was ineffective. State v. Lopez, No. 74096, 2000 WL 574441 (Ohio App.2000). The Ohio Supreme Court declined to review that judgment. State v. Lopez, 89 Ohio St.3d 1466, 732 N.E.2d 999 (2000).

On September 21, 2000, Lopez filed his federal habeas petition, raising two claims: (1) he was denied his federal right to the effective assistance of appellate counsel during his application for reopening filed under Ohio Appellate Rule 26(B); and (2) he was denied his right to the effective assistance of appellate counsel on his first direct appeal. The district court denied the petition, and denied a certificate of appealability. The court held that Lopez was not entitled to habeas relief on these claims because the state court's decisions were not contrary to or an unreasonable application of clearly established law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The district court noted as to the first claim, a lack of Supreme Court precedent supporting a right to counsel in an application to reopen a direct appeal. The district court also observed that, in White, this Court held that an Ohio criminal defendant has the right to counsel during his application for reopening under Rule 26(B), but did not find it dispositive because White was decided prior to Williams, and therefore, this Court had no reason to analyze the state court opinion under the Williams factors.

Lopez appealed to this Court. On February 14, 2002, this Court granted a certificate of appealability on the following issue: "Whether Lopez was denied the right to the effective assistance of appellate counsel during his application for reopening filed under Ohio App. R. 26(B)." Order dated ...