Lopez v. Wilson

• Decision Date: 07 October 2005
• Docket Number: No. 01-3875.,01-3875.
• Citation: 426 F.3d 339
• Parties: Fernando LOPEZ, Petitioner-Appellant, v. Julius WILSON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 339

426 F.3d 339

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

No. 01-3875.

United States Court of Appeals, Sixth Circuit.

Argued: December 8, 2004.

Decided and Filed: October 7, 2005.

ARGUED: Robert D. Little, Law Office of Robert Little, Maplewood, New Jersey, for Appellant. M. Scott Criss, Office of the Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Robert D. Little, Law Office of Robert Little, Maplewood, New Jersey, for Appellant. M. Scott Criss, Douglas R. Cole, Office of the Attorney General, Columbus, Ohio, for Appellee. Michael J. Benza, Cleveland, Ohio, Elvert S. Briscoe, Grafton, Ohio, for Amici Curiae.

Before: BOGGS, Chief Judge; MARTIN, SUHRHEINRICH, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, and SUTTON, Circuit Judges.

SUHRHEINRICH, J., delivered the opinion of the court, in which BOGGS, C.J., BATCHELDER, GILMAN, GIBBONS, ROGERS, and SUTTON, JJ., joined. COLE, J. (pp. 357-59), delivered a separate concurring opinion, in which DAUGHTREY, J., joined, and ROGERS, J. (p. 359-60), delivered a separate concurring opinion. MARTIN, J. (pp. 360-60), delivered a separate dissenting opinion, in which MOORE and CLAY, JJ., joined.

OPINION

SUHRHEINRICH, Circuit Judge.

I. Introduction

Ohio Rule of Appellate Procedure 26(B) allows defendants to "reopen an appeal" on the basis of ineffective assistance of appellate counsel provided during the first direct appeal of right. The 26(B) process operates in two stages. First, the court considers the application. Second, if it accepts the application, the court then reopens the appeal. At stage two, the rule gives indigent defendants a right to appointed counsel, but at stage one it does not. If the 26(B) procedure is part of the initial direct appeal of right, assistance of counsel is constitutionally required at both stages. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (holding that a state is required to provide counsel to an indigent defendant on appeal as of right). By contrast, if Rule 26(B) creates a collateral post-conviction procedure, indigent defendants have no Sixth Amendment right to appointed counsel. See Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (holding that there is no federal constitutional right to counsel for indigent prisoners seeking state postconviction relief).

In his habeas petition, Petitioner Fernando Lopez argued that the state courts' denial of appointed counsel to help him prepare his 26(B) application violated his constitutional right to assistance of counsel because the 26(B) procedure is part of the initial direct appeal as of right. A panel of this Court rejected Lopez's claim. See Lopez v. Wilson, 355 F.3d 931 (6th Cir.) (holding that the Ohio Court of Appeals' decision that the petitioner was not entitled to a Sixth Amendment right to appointment of counsel for filing an application to reopen his direct appeal was not contrary to clearly established federal law), vacated, 366 F.3d 430 (2004). Because panels of this court have split over the correct characterization of the rule, we granted en banc review. See Lopez, 355 F.3d 931 (holding that it is not clearly established under federal law that applications to reopen direct appeal are part of the direct appeal process creating a Sixth Amendment right to appointed counsel); contra White v. Schotten, 201 F.3d 743 (6th Cir.2000) (finding the rule to be part of the direct appeal). For the reasons that follow, we conclude that Rule 26(B) creates a collateral post-conviction procedure, and is not part of the direct right of appeal. We therefore overrule White v. Schotten.

II. Background

Lopez was convicted in 1998 of three counts of rape and three counts of gross sexual imposition. He was sentenced to three concurrent sentences of life imprisonment for the rape convictions, consecutive to three years on each count of gross sexual imposition, which are concurrent to one another. The Ohio Court of Appeals affirmed the convictions on direct appeal. State v. Lopez, No. 74096, 1999 WL 304527 (Ohio Ct.App. May 13, 1999). Lopez was represented by counsel during that appeal.

In December of 1999, 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 ineffective. Lopez also requested appointment of counsel for his application to reopen. The appeals court ordered a copy of his trial transcripts 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 the motion to reopen the appeal and denied the motion for appointment of counsel, ruling that Lopez had failed to raise a colorable claim that his original appellate counsel was ineffective. State v. Lopez, No. 74096, 2000 WL 574441 (Ohio Ct.App. May 11, 2000). The Ohio Supreme Court declined review. State v. Lopez, 89 Ohio St.3d 1466, 732 N.E.2d 999 (2000).

On September 21, 2000, Lopez filed a petition for a writ of habeas corpus, alleging that he was denied his federal right to effective assistance of appellate counsel during his application to reopen, and denied effective assistance of counsel on his first direct appeal. The district court denied the petition, holding that Lopez was not entitled to habeas relief on either claim because the state court 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, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

Lopez appealed to this Court. On February 14, 2002, we 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)." A panel of this Court held that the Ohio Court of Appeals' ruling that Lopez was not entitled to appointment of counsel during his application to reopen his direct appeal was not contrary to clearly established law. Lopez v. Wilson, 355 F.3d 931. One panel member concurred in the judgment only.

On April 20, 2004, we vacated this decision and granted en banc review to decide the proper classification of Rule 26(B) proceedings under federal law.

III. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)(1) (1994 & Supp. VII) ("AEDPA"), governs this appeal. Under the AEDPA, an application for a writ of habeas corpus by a state prisoner shall not be granted unless the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A state court's legal decision is "contrary to" clearly established federal law under § 2254(d)(1) if the state court arrived at the conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decided a case differently than a Supreme Court decision on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). An "unreasonable application" occurs when the state court identified the correct legal principle from the Supreme Court but unreasonably applied that principle to the facts of the case before it. Id.

IV. Analysis

Rule 26(B), of the Ohio Rules of Appellate Procedure, as amended on July 1, 1993, provides:

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 rule does not indicate whether it is a part of a defendant's direct appeal or the state's collateral review process.

State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), prompted the creation of the Rule 26(B) procedure. Murnahan had been convicted of and sentenced for aggravated vehicular homicide and involuntary manslaughter under Ohio law. Id. at 1205-06. Counsel on direct appeal submitted an Anders brief and was permitted to withdraw. Id. at 1206. After giving Murnahan an opportunity to file a pro se brief, the Ohio Court of Appeals ultimately rejected his appeal. Murnahan next sought post-conviction relief in the state trial court under Ohio Rev.Code § 2953.21, claiming his appellate counsel had been ineffective. The state trial court rejected his appeal on the ground that such claims were not cognizable under Ohio Rev.Code § 2953.21. Id. The Ohio Court of Appeals reversed, but certified the issue to the Ohio Supreme Court. Id.

The Murnahan court held that ineffective assistance of appellate counsel claims are not cognizable in post-conviction proceedings pursuant to § 2953.21 because it would be improper for an inferior court to rule on the adequacy of a proceeding in a superior appellate court. Id. at 1208. The Court held that a defendant with such a claim was not without a remedy, though, "since these issues could have been raised in an application for reconsideration in the court of appeals or a direct appeal to [the Ohio Supreme Court]," id. at 1208-09, by bringing such claims in the Ohio appellate courts under the then-existing version of Rule 26. Id. at 1209 n. 3. Although by its terms Rule 26 seems to permit only reconsideration of "any cause or motion submitted on appeal," the Ohio Supreme Court decided to "construe 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. The Ohio...