State v. Fernando Lopez
| Decision Date | 11 May 2000 |
| Docket Number | 00-LW-2312,74096 |
| Parties | STATE OF OHIO, Plaintiff-appellee v. FERNANDO LOPEZ, Defendant-appellant CASE |
| Court | United States Court of Appeals (Ohio) |
Application for Reopening Court of Common Pleas, Case No. CR-354433.
For plaintiff-appellee: WILLIAM D. MASON, Cuyahoga County Prosecutor, RANDI MARIE OSTRY, Assistant County Prosecutor Justice Center, Courts Tower, 1200 Ontario Street, Cleveland Ohio 44113.
For defendant-appellant: FERNANDO LOPEZ, pro se #355-891, Post Office Box 901, Leavittsburg, Ohio 44430.
On December 6, 1999, Fernando Lopez, applicant, filed an application to reopen his direct appeal decided by this court on May 24, 1999, which affirmed his convictions of three counts of rape and three counts of gross sexual imposition, all involving a minor. The prosecutor filed a brief opposing reopening and, for the reasons argued by the prosecutor and those that follow, we deny the application to reopen.
According to App.R. 26(B)(1) and (2)(b), a showing of good cause must be made when an application for reopening is filed more than ninety days after journalization of the appellate judgment. The judgment in this case was Journalized on May 24, 1999. Applicant did not file for reopening until December 6, 1999, over three months beyond the allotted period. As a consequence, applicant must show good cause for his failure to file timely or the application for reopening may be denied. State v. Winstead (1996), 74 Ohio St.3d 277, 658 N.E.2d 722; State v. Wickline (1996), 74 Ohio St.3d 369, 658 N.E.2d 1052.
Applicant claims he was prevented from filing a timely application to reopen because he was unaware that his appeal had been decided. This bare statement alone would not be sufficient to constitute good cause for an untimely filing. State v. Ward (Sept. 13, 1993), Cuyahoga App. No. 63355, unreported, reopening disallowed (Feb. 20, 1998), Motion No. 88968. An applicant is required to exercise diligence and take some affirmative action to determine the status of his/her case. Id.; State v. Michael (1996), 114 Ohio App.3d 523, 683 N.E.2d 435. Applicant herein has documented his efforts to determine the status of his appeal by attaching copies of his letters to his attorney from May, 1998 through September, 1999. See State v. Hammon (Feb. 3, 1999), Erie App. No. E-97-129, unreported. The prosecutor provided no evidence in contradiction, such as an authenticated copy of the prison mail log showing applicant's receipt of the opinion in his appeal from counsel or the clerk of court, and the prosecutor suggests in her brief in opposition that applicant may have good cause for his untimely filing. Absent evidence to the contrary, we accept applicant's showing as good cause. State v. Lambert (Feb. 17, 1999), Richland App. No. 97-CA-34-2, unreported.
An application for reopening will be granted "if there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal." App.R. 26(B)(5); State v. Linen (May 10, 1999), Cuyahoga App., Nos. 74070 and 74071, unreported, reopening granted (Feb. 17, 2000), Motion No. 8969; State v. Hull (Mar. 30, 1987), Cuyahoga App. No. 51853, unreported, reopening granted (Oct. 1, 1993), Motion No. 33708, convictions reaffirmed (Aug. 11, 1994), affirmed (1994), 71 Ohio St.3d 292, 643 N.E.2d 546. In making this determination, we apply the two-prong analysis found in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. State v. Reed (1996), 74 Ohio St.3d 534, 660 N.E.2d 456. The Strickland standard requires the following:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
466 U.S. 687-688, 104 S.Ct. at 2064; see State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraphs two and three of the syllabus.
Appellate counsel is not ineffective necessarily for failing to raise a claim of error. Appellate counsel has no constitutional duty to raise every conceivable assignment of error on appeal. Jones v. Barnes (1983), 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987; State v. Gumm (1995), 73 Ohio St.3d 413, 428, 653 N.E.2d 253; see State v. Campbell (1994), 69 Ohio St.3d 38, 53, 630 N.E.2d 339. In fact, "[a] brief that raises every colorable issue runs the risk of burying good arguments * * * in a verbal mound made up of strong and weak contentions." Jones, 463 U.S. at 753, 103 S.Ct. at 3313. "For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every `colorable' claim suggested by a client would disserve the very goal of vigorous and effective advocacy * * *." Jones, 463 U.S. at 754, 103 S.Ct. at 3314; see State v. Rojas (1992), 64 Ohio St.3d 131, 141-142, 592 N.E.2d 1376; State v. Watson (1991), 61 Ohio St.3d 1, 15-16, 572 N.E.2d 97. Consequently, absent an egregious omission, the mere failure to present a specific assignment of error in addition to others raised on appeal will not constitute deficient performance of appellate counsel, i.e., performance falling below the norms of the profession.
Even when an applicant demonstrates the deficient performance of appellate counsel for failing to present an additional assignment of error, the applicant still must establish prejudice. See, e.g., Sharp v. Puckett (5th Cir. 1.9-91), 930 F.2d 450. Prejudice is presumed in situations where the [un]assistance of counsel is tantamount to the denial of counsel on appeal. Penson v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300. Otherwise, an applicant must show that there is a reasonable probability that, but for the unprofessional error(s), the result of the appeal would have been different. See Sharp, 930 F.2d at 452-453; State v. Reed (1996), 74 Ohio St.3d 534, 660 N.E.2d 456. Counsel's omission of "a dead-bang winner" assignment of error, even though zealously pressing other strong but unsuccessful claims of error, could render counsel's assistance constitutionally ineffective. Page v. United States (7th Cir. 1989), 884 F.2d 300, 302.
Counsel for applicant raised the following two assignments of error in applicant's direct appeal:
Applicant contends appellate counsel was deficient in his performance on appeal for not raising these assignments of error in a federal constitutional context. Applicant claims he has been prejudiced thereby because he is now barred from presenting these issues in a federal habeas petition. Applicant however, cannot substantiate his claim of prejudice since he is not precluded from raising these issues in the federal system. If a federal court determines in a federal habeas action that the failure to properly raise an issue in the state system is due to the ineffective assistance of appellate counsel, the federal court may hear the claim. Mapes v. Coyle (1999), 171 F.3d 408; Cooey v. Anderson (N.D.Ohio 1997), 988 F.Supp. 1066; cf., Edwards v. Carpenter (2000), 529 U.S. ___ (procedural default of ineffective assistance of counsel claim may bar consideration of ineffective assistance of counsel claim as "cause" for procedural default of another claim). The fact that applicant's appellate counsel did not present the assignments of error as federal constitutional violations does not preclude applicant from...
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