Opinion
Case No. C-1-96-641
February 28, 2002
SUPPLEMENTAL MEMORANDUM ON PETITIONER'S MOTION FOR RECONSIDERATION
This capital habeas corpus case is before the Court on Respondent's Objections to and Appeal from Magistrate's Decision and Order Granting Petitioner's Motion for Reconsideration (Doc. No. 150). The General Order of Reference for the Dayton location of court permits the Magistrate Judge to reconsider decisions or reports and recommendations when objections are filed.
In the Decision and Order appealed from, the Magistrate Judge allowed expansion of the record by adding an Affidavit of attorney Ken Murray for the purpose of establishing cause and prejudice for Petitioner's failure to timely present his claims of ineffective assistance of appellate counsel to the Ohio Court of Appeals. The Magistrate Judge concluded Petitioner could obtain merit review of those claims in this Court because the procedural default rule enforced against him by the Ohio Court of Appeals — the rule requiring that applications to reopen direct appeals to litigate ineffective assistance of appellate counsel be filed within ninety days of judgment or that good cause be shown for filing late — was not an adequate and independent state ground for refusing to consider the ineffectiveness claim in a capital case. That conclusion was based upon the uniform failure of the Ohio Supreme Court to enforce the timeliness rule in every capital case which came before them in 2001.
State v. Hill, 90 Ohio St.3d 571, 740 N.E.2d 282 (2001); State v. Sheppard, 91 Ohio St.3d 329, 744 N.E.2d 770 (2001); State v. Bradley, 91 Ohio St.3d 570, 747 N.E.2d 819 (2001); State v. Hooks, 92 Ohio St.3d 83, 748 N.E.2d 528 (2001); State v. Brooks, 92 Ohio St.3d 537, 751 N.E.2d 1040 (2001); State v. Jalowiec, 92 Ohio St.3d 421, 751 N.E.2d 467 (2001); State v. Palmer, 92 Ohio St.3d 241, 749 N.E.2d 749 (2001); State v. Jells, 90 Ohio St.3d 454, 739 N.E.2d 345 (2000); State v. Biros, 93 Ohio St.3d 250, 754 N.E.2d 805 (2001); State v. Carter, 93 Ohio St.3d 581, 757 N.E.2d 362 (2001); State v. Moore, 93 Ohio St.3d 649, 758 N.E.2d 1130 (2001).
Respondent's Objections rely on Monzo v. Edwards, ___ F. 3rd ___, 2002 WL 246666 (2002), handed down by the Sixth Circuit after the Magistrate Judge's Decision and Order. Monzo, like Petitioner, claimed that the good cause requirement of Ohio App.R. 26(B) was not an adequate and independent state ground because it was not firmly established and regularly followed. The chronology in Monzo's case, however, was exactly the reverse of this case. Monzo conceded that by the time his case reached the federal courts, the Ohio courts had begun to regularly follow and uniformly apply App.R. 26(B), but he contended they were not doing so at the time it was applied to his case. Petitioner here contends that, whatever the Ohio courts were doing when he was precluded in 1999, now (2001-2002) the Ohio Supreme Court is not uniformly following the rule.
The Monzo case does not control the outcome here. Most importantly, Monzo is not a capital case and in deciding it, the Sixth Circuit did not consider (or at least did not cite to) any of the Ohio Supreme Court capital cases listed in footnote 1, supra. So far as this Court has been able to observe, the Ohio courts are now uniformly following App.R. 26(B) and applying it in a consistent manner, except for the Ohio Supreme Court in capital cases in the last year. Indeed, in all of the capital cases cited in footnote 1, the Courts of Appeals enforced the 26(B) timeliness requirement, but the Ohio Supreme Court did not affirm on that basis.
Respondent argues that, under Monzo, the critical time for measuring adequacy of a state ground is when it is applied by the state courts to the case in suit, not when the federal court reviews that application. If there were a steady development of state policy, as there has been in applying Rule 26(B) to non-capital cases, that approach would comport with the comity rationale which underlies the adequate state ground doctrine. But with respect to capital cases, the apparent state policy, as developed by Ohio's highest court, is not to apply the 26(B) timeliness rule.
Moreover, as noted in the original Decision, the question of which capital cases are "old" enough to have had the timeliness rule applied by the Ohio Supreme Court and those which are "new" enough not to have been subject to it may be a matter of pure happenstance. In many of these capital cases, the 26(B) application is being made many years after the 90-day limit expired. In this case, the direct appeal was decided January 12, 1989, State v. Landrum, 1989 WL 4244 (Ross Cty. Ct. App. 1989), and the 26(B) application was not filed until December, 1998, almost ten years later, well after Murnahan (1992), after 26(B) was adopted (1993), and after the Petition was filed in this case (1996). One could hardly fault the Ohio courts for finding the application was untimely or for rejecting Petitioner's argument that once there is some good cause for delay, the good cause persists forever.
And yet, offered an opportunity to enforce 26(B), the Ohio Supreme Court has repeatedly and recently declined to do so in cases where the rule would seem clearly as applicable as in this case. For example, in State v. Palmer, 92 Ohio St.3d 241, 749 N.E.2d 749 (2001), the conviction was affirmed on direct appeal August 29, 1996, and the 26(B) application was not filed until August 28, 2000, four years later. Four years is much less than ten, but the difference is hardly significant when the standard is 90 days, but under Respondent's reading of the law, Palmer, whose conviction is almost as old as Landrum's, gets the benefit of the Ohio Supreme Court's change of mind, but Landrum does not.
As another example, Cedric Carter's direct appeal was decided November 3, 1993. State v. Carter, 1993 WL 512859 (Ohio App. 1 Dist.). His second application for reopening was not filed until July 19, 2000, nearly seven years later, yet the Ohio Supreme Court reviewed this application on the merits. State v. Carter, 93 Ohio St.3d 581, 757 N.E.2d 362 (2001). At the present, the timeliness requirement of Ohio App.R. 26(B) is not "firmly established" and "regularly followed" in the Ohio Supreme Court. It therefore is not an adequate and independent state ground.
Apart from the timeliness issue, Respondent claims there is another procedural bar to considering Petitioner's ineffective assistance of appellate counsel claim on the merits, to wit, Ohio App.R. 26(B) requires that the claim as presented be "colorable."
Respondent begins the argument by claiming the Magistrate Judge has a "fundamental misconception of Ohio law and practice" as regards Ohio App.R. 26(B) and notes that the Rule provides for a two-stage procedure, during the first of which a defendant must show good cause for delay and a colorable claim.
Actually, the Magistrate Judge is not unfamiliar with Rule 26(B), having been a member of the Ohio Supreme Court's Rules Advisory Committee in 1993 when the Rule and the "Staff Comments" were drafted.
The "colorable claim" language is quoted in the Staff Notes from Murnahan and does not appear in the Rule itself, which was intended to supersede Murnahan. What the Rule requires is:
(c) One or more assignments of error or arguments in support of assignments of error that previously were not considered on the merits in the case by any appellate court or that were considered on an incomplete record because of appellate counsel's deficient performance; and
(d) A sworn statement of the basis for the claim that appellate counsel's representation was deficient with respect to the assignments of error or arguments raised pursuant to division (B)(2)(c) of this rule and the manner in which the deficiency prejudicially affected the outcome of the appeal, which may include citations to applicable authorities and references to the record;
In other words, what a defendant must do is make a prima facie showing on the merits of the claim that he or she suffered ineffective assistance of appellate counsel, a showing which the Ohio Supreme Court has continued to call a "colorable claim". State v. Reddick, 72 Ohio St.3d 88, 91, 647 N.E.2d 784 (1995).
Respondent is certainly correct in asserting (Objections at 6) that the "colorable claim" and "good cause" showings are both threshold requirements, separate from each other, which must both be satisfied before the direct appeal is reopened. Respondent is also correct that failure to meet the "colorable claim" requirement will result in a denial of the motion to reopen without a full consideration of the merits of the ineffective assistance of appellate counsel claim. But the court of appeals evaluating the claim must decide if it is "colorable," that is, if it has possible or potential merit. "Colorable is used in law in the sense of `having at least a prima facie aspect of justice or validity." Garner, DICTIONARY OF MODERN LEGAL USAGE 2ND at 173.
This Court again concludes, then, that a decision by an Ohio Court of Appeals that a claim made under App.R. 26(B) is not a "colorable" claim is a decision that the claim lacks merit, i.e., that it is so lacking in merit as not to warrant further examination.
Respondent asserts that the "colorable claim" requirement is being regularly followed by Ohio courts, and this Court is unaware of any evidence to contradict that assertion. However, even if the "colorable claim" is being so enforced and were regarded as a "procedural" rather than a prima facie "merits" determination, that would not assist Respondent's position here. In order for a state procedural default to prevent merits consideration, the default must have been enforced against the habeas petitioner. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986), citing County Court of Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). Here there is no indication in the Court of Appeals opinion that they found Petitioner's claim "not colorable." Instead, they enforced the timeliness rule and the Ohio criminal res judicata rule against Mr. Landrum. State v. Landrum, Case No. 86 CA 1330 (Ross County, April 13, 1999) (Copy at Return of Writ, Doc. No. 84, Ex. EEE). The Ohio Supreme Court affirmed on the timeliness ground alone. State v. Landrum, 87 Ohio St.3d 315, 720 N.E.2d 524 (1999).
Having considered Respondent's Objections, the Magistrate Judge again concludes Petitioner is entitled to merit review of his ineffective assistance of appellate counsel claim in this Court because (1) the timeliness requirement of Ohio App.R. 26(B) is not presently firmly established and regularly followed in capital cases in Ohio and (2) the threshold "colorable claim" requirement of Ohio App.R. 26(B) is (a) not a procedural requirement and (b) was not enforced against Petitioner in this case.