Smith v. State of Ohio Dept. of Rehab.

• Citation: 463 F.3d 426
• Decision Date: 08 September 2006
• Docket Number: No. 04-4280.,04-4280.
• Parties: Scott M. SMITH, Petitioner-Appellant, v. STATE OF OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 426

463 F.3d 426

Scott M. SMITH, Petitioner-Appellant, v. STATE OF OHIO DEPARTMENT OF REHABILITATION AND CORRECTIONS, Respondent-Appellee.

No. 04-4280.

United States Court of Appeals, Sixth Circuit.

Submitted: April 20, 2006.

Decided and Filed: September 8, 2006.

COPYRIGHT MATERIAL OMITTED

ON BRIEF: Stuart A. Cole, Office of the Attorney General, Columbus, Ohio, for Appellee. Scott M. Smith, Mansfield, Ohio, pro se.

Before: MOORE, GRIFFIN, and CUDAHY, Circuit Judges.^*

OPINION

KAREN NELSON MOORE, Circuit Judge.

Petitioner-Appellant Scott M. Smith filed a petition for habeas corpus raising claims of double jeopardy and insufficient evidence. The district court denied Smith's petition on the ground that Smith could have pursued further remedies through the Ohio courts but lost that opportunity by failing to comply with the state procedural rules regarding the timing of filing an appeal to the Ohio Supreme Court. The district court rejected Smith's argument that his procedural default should be excused because of the ineffective assistance of his appellate counsel— namely, his counsel's failure to provide him with timely notification of the judgment of the Ohio Court of Appeals—on the basis that Smith had no right to counsel before the Ohio Supreme Court. We disagree and instead conclude that the failure of Smith's counsel to provide Smith with timely notice of the decision of the Ohio Court of Appeals related to the representation on direct appeal of right at the Ohio Court of Appeals, a proceeding during which Smith had a right to counsel, and that counsel's performance was constitutionally deficient. Nevertheless, we AFFIRM the dismissal of Smith's habeas petition on the ground that Smith cannot rely on ineffective assistance of counsel to overcome the procedural default of his claims because he has not shown that he would have timely appealed the decision of the Ohio Court of Appeals but for his counsel's deficient performance, and thus he cannot show that he was prejudiced thereby.

I. BACKGROUND

On May 17, 1999, a jury in the Court of Common Pleas in Lorain County, Ohio convicted Smith of engaging in a pattern of corrupt activity with a firearm specification, conspiracy to commit aggravated robbery with a firearm specification, carrying a concealed weapon, receiving stolen property with a firearm specification, and possession of criminal tools with a firearm specification, in violation of Ohio law. J.A. at 42 (J. Entry of Conviction & Sentence). Smith was sentenced to fourteen years of imprisonment, which was to run consecutively to Smith's ninety-three month federal sentence for conspiracy to commit armed bank robbery in violation of 18 U.S.C. § 371 and carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c). J.A. at 45 (J. Entry of Conviction & Sentence), 47 (J. in a Criminal Case at 1).

On December 17, 1999, Smith appealed his conviction to the Ohio Court of Appeals for the Ninth District. J.A. at 51 (Appellant Br.). He alleged that his convictions under both state and federal law for the same conduct violated the prohibition against double jeopardy in the U.S. and Ohio Constitutions, U.S. CONST. amend. V; OHIO CONST. § 1.10, and that there was insufficient evidence to link him to the two bank robberies that were part of count one of the indictment, which alleged that Smith engaged in a pattern of corrupt activity. J.A. at 58-59 (Appellant Br. at 5-6). On June 28, 2000, the Ohio Court of Appeals affirmed Smith's conviction. J.A. at 91-96. According to Smith, he did not receive notice of the decision of the Court of Appeals until either August 9 or 11, 2000. J.A. at 99 (Smith's Motion for Delayed Appeal at 1), 112 (Smith Aff. ¶ 15), 144 (Smith's Motion to Reopen at 9). Smith did not appeal this judgment by August 14, 2000, the last day he could have done so by right within the forty-five day period set forth by Ohio Supreme Court Rules.¹ Smith then submitted a motion for delayed appeal to the Ohio Supreme Court pursuant to Ohio Supreme Court Rule II § 2(A)(4)(a) on February 28, 2001. J.A. at 98-102. The Ohio Supreme Court denied his motion. J.A. at 135. On February 13, 2001, Smith filed a motion to reopen his appeal to raise a claim of ineffective assistance of appellate counsel pursuant to Ohio Appellate Rule 26(B). J.A. at 136. The Ohio Court of Appeals denied this motion for untimeliness. J.A. at 233-34. The Ohio Supreme Court denied Smith's appeal of this judgment. J.A. at 285. Smith argued that his delay in appealing his claims to the Ohio Supreme Court and in filing his motion to reopen in the Ohio Court of Appeals were both due to his attorney's delay in providing him notice of the Ohio Court of Appeals decision on direct review, which he contends in his Rule 26(B) motion constituted ineffective assistance of appellate counsel. J.A. at 99-101 (Smith's Motion for Delayed Appeal at 1-3), 144 (Smith's Motion to Reopen at 9).

On April 14, 2002, Smith filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 presenting double jeopardy and insufficient evidence claims. J.A. at 10. Smith also claimed that the Ohio Court of Appeals erred by failing to address his ineffective assistance claim prior to dismissing his motion to reopen and that the Ohio Supreme Court erred by denying his motion for a delayed appeal. J.A. at 11. The district court rejected the magistrate judge's recommendation that Smith's habeas petition should be dismissed as untimely,² and instead denied his double jeopardy and insufficient evidence claims on the basis of procedural default and the remainder of his grounds for relief for failure to state cognizable habeas claims. Smith v. Ohio Dep't of Rehab. & Corr., 331 F.Supp.2d 605, 617, 620-22 (N.D.Ohio 2004). Smith filed this timely appeal.

II. EXHAUSTION AND PROCEDURAL DEFAULT

A. Standard of Review

We review de novo the legal conclusions reached by the district court in resolving a habeas petition. King v. Bobby, 433 F.3d 483, 489 (6th Cir.2006). We review the district court's findings of fact for clear error, "but when the district court's decision in a habeas case is based on a transcript from the petitioner's state court trial, and the district court thus makes no credibility determination or other apparent finding of fact, the district court's factual findings are reviewed de novo." King, 433 F.3d at 489 (internal quotation marks omitted). Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a habeas petition cannot be granted as to any claim the state court considered on the merits unless the state court proceedings: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). However, when "as here, the state court did not assess the merits of a claim properly raised in a habeas petition" —Smith's ineffective assistance of counsel claim—"the deference due under AEDPA does not apply." Maples v. Stegall, 340 F.3d 433, 436 (6th Cir.2003). Rather, "this court reviews questions of law and mixed questions of law and fact de novo." Id.

B. General Contours

A petitioner for a writ of habeas corpus must meet certain procedural requirements to permit review of his habeas claims by a federal court. The petitioner must first exhaust the remedies available in state court by fairly presenting his federal claims to the state courts; unexhausted claims will not be reviewed by the federal court. Deitz v. Money, 391 F.3d 804, 808 (6th Cir.2004); Lott v. Coyle, 261 F.3d 594, 601 (6th Cir.2001). The exhaustion "requirement is satisfied when the highest court in the state in which the petitioner was convicted has been given a full and fair opportunity to rule on the petitioner's claims." Lott, 261 F.3d at 608 (internal quotation marks omitted). The federal court will not review claims that were not entertained by the state court either due to the petitioner's failure to raise those claims in the state courts while state remedies were available or when the petitioner's failure to comply with a state procedural rule prevented the state courts from reaching the merits of the claims. Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir.2006).

For noncompliance with a state procedure to serve as a bar to habeas review, the state procedure must satisfy the standards set forth in Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). First, there must be a state procedure in place that the petitioner failed to follow. Id. Second, the state court must have actually denied consideration of the petitioner's claim on the ground of the state procedural default. Id. Third, the state procedural rule must be an "adequate and independent state ground" to preclude habeas review. Id. This inquiry "generally will involve an examination of the legitimate state interests behind the procedural rule in light of the federal interest in considering federal claims." Id. A state procedural rule must be "`firmly established and regularly followed'" to constitute an adequate basis for foreclosing habeas review. Deitz, 391 F.3d at 808 (quoting Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991)). A state procedural rule is an independent ground when it does not rely on federal law. Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). If these three factors are satisfied, the petitioner can overcome the procedural default by either "demonstrat[ing] cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrat[ing] that failure to consider the claims will result in a fundamental miscarriage of justice." Id. at 750, 111 S.Ct. 2546.

C. Procedural Default:...