Frederick White v. JAMES SCHOTTEN , Warden

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0036P (6th Cir.)
File Name: 00a0036p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
FREDERICK W HITE ,
Petitioner-Appellant,
v.
J AMES S CHOTTEN , Warden,
Respondent-Appellee.
;>

1
No. 97-4066
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 95-02801—Patricia A. Gaughan, District Judge.
Argued: June 10, 1999
Decided and Filed: January 26, 2000
Before: KEITH, DAUGHTREY, and MOORE, Circuit
Judges.
_________________
COUNSEL
ARGUED: Kort W. Gatterdam, PUBLIC DEFENDER’S
OFFICE, OHIO PUBLIC DEFENDER COMMISSION,
Columbus, Ohio, for Appellant. Stuart W. Harris, OFFICE
OF THE ATTORNEY GENERAL, CORRECTIONS
LITIGATION SECTION, Columbus, Ohio, for Appellee.
ON BRIEF: Kort W. Gatterdam, PUBLIC DEFENDER’S

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2 White v. Schotten No. 97-4066
OFFICE, OHIO PUBLIC DEFENDER COMMISSION,
Columbus, Ohio, for Appellant. Stuart W. Harris, OFFICE
OF THE ATTORNEY GENERAL, CORRECTIONS
LITIGATION SECTION, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge.
Petitioner Frederick White appeals the district court’s
dismissal of his habeas corpus petition, filed pursuant to 28
U.S.C. § 2254. In the petition, White challenges his 1989
state convictions for aggravated murder with a firearm
specification, felonious assault with a firearm specification,
and possession of a weapon under disability, alleging that his
appellate counsel rendered constitutionally ineffective
assistance. The district court dismissed the petition on the
ground of procedural default, finding that the petitioner had
failed to raise the issue of ineffective assistance of counsel
within the time limit set by Ohio App. R. 26(B). The district
court further found that White was unable to show cause and
prejudice for the default.
Under applicable Ohio law, a claim of ineffective assistance
is raised by application to reopen the direct appeal. Rule
26(B) provides that the application must be filed within 90
days “from journalization of the appellate judgment.” In this
case, the petitioner’s attorney filed the application some three
years after the 90-day period had run. Because an application
for reopening the direct appeal in Ohio is part of the direct
appeal process, and because a defendant has a right to
effective assistance of counsel during that stage of
proceedings, we conclude that the petitioner in this case is
able to show cause for his procedural default, i.e., counsel’s
failure to file a timely application for reopening. However,
the issue of whether the petitioner was prejudiced by the
alleged constitutional error was not addressed by the district
court and is not adequately briefed before us. Hence, we must
remand the case to the district court to make that
No. 97-4066 White v. Schotten 19
cause to excuse any failure to comply with the procedural
requirements contained in Ohio Rule of Appellate Procedure
26(B). Accordingly, we remand to the district court to
consider whether the petitioner has established that he was
actually prejudiced by the alleged constitutional error and, if
so, to review his constitutional claims on their merits.

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18 White v. Schotten No. 97-4066
However, as previously stated, we conclude that the
petitioner has shown cause for his default, and if he is able to
demonstrate that he was actually prejudiced by the alleged
constitutional error, he is entitled to federal review of the
merits of his constitutional claims. Because the issue of
prejudice is not adequately briefed, we remand for the district
court to consider the issue, keeping in mind the following
guidelines for such analysis articulated in Maupin, which the
court gleaned from various Supreme Court cases: (1) “the
prejudice that must be shown must be a result of the alleged
constitutional violation and not a result of the trial counsel’s
failure to meet state procedural guidelines;” (2) “the burden
is on the petitioner to show that he was [actually] prejudiced
by the alleged constitutional error..., not merely a possibility
of prejudice;” and (3) “in analyzing a petitioner’s contention
of prejudice, the court should assume that the petitioner has
stated a meritorious constitutional claim.” 785 F.2d at 139
(citations omitted). Of course, if the district court finds that
the petitioner has established prejudice, it should proceed to
decide the merits of his constitutional claims.
Finally, we note the petitioner’s argument that Rule 26(B)
is unconstitutional as applied in Ohio because it deprives
indigent, incarcerated, uncounseled inmates due process and
equal protection of the laws. These claims were not raised in
the district court, however. “When a party fails to present an
argument to the district court, we have discretion to resolve
the issue only where the proper resolution is beyond any
doubt, or where injustice might otherwise result.” See
Enertech Elec., Inc. v. Mahoning County Comm’r, 85 F.3d
257, 261 (6th Cir. 1996). We decline, in this instance, to treat
these issues as a matter of initial review.
CONCLUSION
We conclude that Ohio criminal defendants have a federal
constitutional right to effective assistance of counsel during
an application for reopening and that the petitioner’s counsel
in this case was constitutionally ineffective in failing to file
such an application in a timely fashion, thus constituting
No. 97-4066 White v. Schotten 3
determination and, if it finds that the petitioner has
established prejudice, to review the petitioner’s constitutional
claims on their merits.
PROCEDURAL AND FACTUAL BACKGROUND
The convictions underlying Frederick White’s federal
petition for habeas corpus arise from the shooting death of his
former wife, Kimberly Hawkins White, as she left work. The
Ohio Court of Appeals, affirming the petitioner’s convictions
and sentence on direct appeal, stated the facts of this case as
follows:
[Kimberly Hawkins] White worked as a nurse's assistant
at the Mount St. Joseph Nursing Home. At
approximately 7:00 a.m., November 5, 1988, White left
the nursing home with Jacqueline Glenn and walked
toward the van of Richard Gibson, a friend of Glenn's,
who was to drive the women home. Glenn testified she
entered the van through the front passenger door and, as
she began to unlock the rear sliding door, White
screamed and pushed Glenn into the van. The women
fell onto the floor between the seats. Glenn heard an
initial shot and heard White shout, "Wait, Rick, wait."
(Tr. 110). According to Glenn, this shot hit White in the
leg. Glenn told the jury White's assailant entered the van
and again shot White, who stated "Oh, Rick." (Tr. 113).
Glenn, who received powder burns during the shooting,
testified she heard three to four shots. She also observed
the man's face as he left the van.
In her statement to police immediately after the shooting,
Glenn indicated she did not see the man who shot White,
nor did this statement include White's identification of
her assailant. Two days later, Glenn went to the police
station to amplify her initial statement. She then told
police of White's references to her assailant as "Rick" and
described the man's clothing. Glenn subsequently
selected the defendant's picture from an array of five
photographs and identified him as the man who shot
White.

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Richard Gibson, the driver of the van, corroborated
Glenn's testimony but was unable to identify the
assailant. Gibson told the jury that, as White lay
wounded in the van, she stated her husband fired the
shots. Euclid police officer Jeffrey Swider responded to
the nursing home minutes after the shooting. Swider
testified he asked White who shot her and White
responded, "My husband." (Tr. 180). Sister Mary
Raphael, a nun at the nursing home, also heard White
identify her husband as the assailant. White later died in
the hospital.
Cuyahoga County Coroner Elizabeth Balraj performed an
autopsy on White's body. Her examination revealed a
gunshot wound to the left leg as well as an abdominal
wound with a perforation of the aorta. Balraj opined
White hemorrhaged to death. Barbara Campbell, a
member of the coroner's trace evidence department,
testified that gun shot residue on White's palms indicated
the weapon was fired in close proximity to White.
Kathy Kozel, an assistant at Mount St. Joseph, testified
that, as she arrived for work, she observed a man
standing outside the nursing home approximately ten
minutes before the shooting. Kozel stated she was 12-13
feet from the man and that she looked at his face. Kozel
did not see the man fire a gun. Three months later, Kozel
selected the defendant's photo from an array as the man
she saw outside the nursing home.
Charon Hawkins, the victim's daughter, testified the
defendant telephoned her mother the evening before she
was killed. According to Hawkins, her mother twice
refused to speak with the defendant, who finally
threatened "to do something bad" to her mother. (Tr.
235). The daughter also averred the defendant beat her
mother many times.
Vivian Faylor Jeff, a counselor at the Cuyahoga County
Witness & Family Violence Center, testified she met
with White on six to eight occasions and that White was
No. 97-4066 White v. Schotten 17
to entertain the claim. See id. In analyzing such a claim, the
inquiry is a narrow one, where the petitioner must "point to a
constitutional violation that probably resulted in the
conviction of one who was actually innocent." Ritchie v.
Eberhart, 11 F.3d. 587, 593 (6th Cir.1993); accord Schlup v.
Delo, 513 U.S. 298, 321 (1997); Murray v. Carrier, 477 U.S.
478, 496 (1986). The petitioner argues that the following
evidence shows that he is actually innocent:
There were two eyewitnesses to the crime. Richard
Gibson testified he could not identify the perpetrator.
Jackie Glenn identified Mr. White but admitted she told
the police after the incident that she did not see the
assailant because she was pushed aside, out of the way,
and had her head down. The State’s evidence is
contradicted by the evidence presented by White. Mr.
White produced credible evidence at his trial that he was
in Columbus, Ohio at the time of his ex-wife’s murder.
In addition to the alibi testimony from his wife, Mr.
White introduced testimony from two disinterested
witnesses who testified to seeing Mr. White the night
before and the morning of the murder in Columbus,
Ohio. . . . The State of Ohio convicted Mr. White based
upon his past conduct, bad character, hearsay and
prosecutorial misconduct.
We conclude that the petitioner has not made a colorable
showing of actual innocence under the Carrier/Schlup
standard. As the petitioner acknowledges, this evidence was
presented to the jury, which chose to credit the state’s
evidence over that offered by the petitioner. Although we
might agree with the Ohio Court of Appeals’s assessment that
the prosecutor violated the rules of evidence in this case, there
is no basis for us to second-guess the jury’s credibility
determination and its resulting verdict. Accordingly, because
a miscarriage of justice will not result from the court's failure
to review this claim, it does not excuse the petitioner’s failure
to comply with state procedural rules. See Ritchie, 11 F.3d at
593.

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16 White v. Schotten No. 97-4066
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, 553 N.E.2d 264
(Ohio 1990); In re: Petition of Brown, 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 (1985), such an individual must be accorded effective
assistance of counsel throughout all phases of that stage of the
criminal proceedings. The failure of the Ohio Public
Defender to offer such constitutionally-mandated counsel
excuses the failure of the petitioner to abide by the timing
requirements of applicable procedural rules.
Therefore, upon establishing that he was actually prejudiced
by any ineffective representation, the petitioner is entitled to
present to a federal court for merit review those claims that
should have been brought to the attention of the Ohio state
courts throughout the course of the petitioner's legal battles.
See Coleman, 501 U.S. at 750. Having found no cause for
White’s default, neither the magistrate judge nor the district
judge addressed the prejudice prong. Accordingly, unless
there is another basis upon which to excuse the petitioner’s
procedural default, we must remand to the district court to
decide whether the petitioner can establish prejudice.
White claims that there is such an alternative basis to
excuse his procedural default, arguing that even if this court
finds that he has not shown cause and prejudice, the
procedural default should nonetheless be excused because a
fundamental miscarriage of justice would result from a failure
No. 97-4066 White v. Schotten 5
afraid of the defendant. Jeff indicated White had filed a
complaint against the defendant and sought a protective
order and divorce from him. Mabel Jean Edwards, also
a nursing home employee, told the jury she discussed
White's domestic problems with the defendant. Edwards
averred she "often" saw White with black eyes and
bruises on her neck. According to Edwards, White told
her the defendant once shot at her and a friend.
Euclid police officer Patrick Lynch testified the
defendant's auto was found north of Columbus on the
northbound side of Interstate I-71 at 2:14 a.m. the day
after the shooting. The left rear tire on the vehicle was
flat. Lynch told the jury that highway patrol reports from
the previous day did not refer to the auto. In February
1989, police arrested the defendant in California and
brought him back to Cleveland for trial.
The defendant denied killing his former wife and told the
jury he was in Columbus at the time of the shooting. He
claimed he spent the late afternoon of November 4, 1988
with his current wife, Kimberly Fox White, until she
went to work that night. According to the defendant, he
left for Cleveland at 7:00 p.m. to visit relatives after
learning about the death of an uncle. The defendant
stated his auto had a flat tire on Interstate 71 just outside
Columbus and he walked to a nearby convenience store
to phone for assistance. Unable to secure towing services,
the defendant went to a laundromat/restaurant named
"Dirty Dungarees" where he met a woman, Rhonda
Simon. The defendant introduced himself to her as
"Tony Love", a name he used as a radio disc jockey. The
woman later drove him to his apartment where she left
her telephone number on a magazine. The magazine was
introduced into evidence. The defendant gave Simon a
record album for bringing him home. The defendant
testified that, after Brown left, a neighbor, Andrea Bell,
visited him. The defendant asked her to order a pizza for
him from her apartment since his telephone was not
working.

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6 White v. Schotten No. 97-4066
According to the defendant, he and his wife later tried to
retrieve his auto but the battery was dead. They spent the
rest of the evening watching videotaped movies. The
defendant told the jury he awoke the morning of the
slaying at 8:15 and went on errands with his wife. He
claimed that, as he left the apartment complex on
errands, he spoke with Bell about the pizza not arriving
the previous night. Later that day the defendant learned
his former wife had been killed. He acknowledged he
left for California after police visited his mother in
Cleveland. The defendant stated the police told his
mother they would shoot him.
Rhonda Simon corroborated the defendant's testimony as
to meeting "Tony Love" at 8:00 p.m. on November 4,
1988 at "Dirty Dungarees." She verified that he told her
of his flat tire and that she drove him to his apartment
where she left her phone number on a magazine. Simon
averred she arrived at her house at approximately 10:00
p.m. Andrea Bell also agreed she visited the defendant
at his apartment "on a Friday evening in early November"
and learned of his flat tire. According to Bell, she spoke
with the defendant the next morning between 8:30 and
9:00 as he left the apartment complex with his wife in her
auto. Kimberly Fox White corroborated the defendant's
testimony and claimed he was with her in the early
morning hours of November 5, 1988.
Private investigator John Younkin told the jury that the
distance from defendant's auto on Interstate 71 to the
nursing home where White was shot equaled 139.3
miles. According to Younkin, it requires two hours and
nineteen minutes to drive this distance at the posted
speed limits.
The defendant offered two character witnesses on his
behalf. Glenn Frazier, a pastor at the Gospel Palace
Church and manager of a radio station where defendant
hosted an inspirational program, testified to the
defendant's honesty. Bishop F.E. Perry stated the
No. 97-4066 White v. Schotten 15
assistance of appellate counsel in his direct appeal, it is clear
from other portions of his brief, the affidavit from his counsel
at the Ohio Public Defender’s Office, his arguments before
the state courts, and simple logic that the reason the
application for reopening was filed three years late was the
failure of his attorney to file that pleading in compliance with
the rule. As evidenced in the present case and as noted in
Paris v. Turner, No. 97-4129, 1999 WL 357815 (6th Cir.
(Ohio) May 26, 1999), the public defender’s office has
repeatedly failed to preserve the right of criminal defendants
to challenge the constitutionality of their convictions due to
its disregard, whether intentional or because of inadequate
funding and staffing, of filing deadlines and procedural
barriers.
Without question, an attorney's failure or refusal to abide by
established time deadlines in handling a client's appeal is
conduct falling below the minimal standards of competency
that federal case law has imposed upon counsel to satisfy
constitutional safeguards. See Strickland v. Washington, 466
U.S. 668, 698 (1984) (a finding of ineffective assistance of
counsel requires first that an attorney's representation fall
below an objective standard of reasonableness). See also
Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998)
(failure to perfect a direct appeal in derogation of a request to
do so is a per se violation of the Sixth Amendment, regardless
of whether the appeal would have been successful). In fact,
such deficiencies have been held to constitute ineffective
assistance of counsel per se. See Rodriguez v. United States,
395 U.S. 327, 330 (1969) ("Those whose right to appeal has
been frustrated should be treated exactly like any other
appellant; they should not be given an additional hurdle to
clear just because their rights were violated at some earlier
stage of the proceedings.").
The State of Ohio argues, nevertheless, 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 (1987).
Without a right to counsel, the petitioner also has no

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14 White v. Schotten No. 97-4066
cause to excuse filing of an application for reopening over one
year after journalization of appellate judgment); State v.
Klein, No. 49260 (Ohio App. 8 Dist., March 15, 1994)
(holding pro se status and ignorance of law did not constitute
“good cause” to excuse filing of application for reopening
five months after journalization and two months after
effective date of new Rule 26(B)); State v. Wright, No. 93 CA
2110, 1994 WL 398805 (Ohio App. 4 Dist., July 29, 1994)
(holding state’s failure to respond to an application for
reopening constitutes “good cause”); State v. Fields, No. 95
CA-08-048 (Ohio App. 5 Dist., April 21, 1994) (same); State
v. Wright, No. 93 CA 2110, 1994 WL 398805 (Ohio App. 4
Dist., July 29, 1994) (same). Nonetheless, we recognize that
the rule is relatively new and acknowledge that it may take
some time for the Ohio courts to achieve consensus.
In any event, we need not focus on whether the good cause
exception to Rule 26(B) constitutes an independent and
adequate state ground, because we conclude, upon
consideration of the fourth Maupin factor, that the petitioner
has established cause for his failure to follow the state
procedural rule. See Coleman v. Thompson, 501 U.S. 722,
750 (1991) (“In all cases in which a state prisoner has
defaulted his federal claims in state court pursuant to an
independent and adequate state procedural rule, federal
habeas review of the claims is barred unless the prisoner can
demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a fundamental
miscarriage of justice.”) The district court, through the
adoption of the magistrate judge’s report and
recommendation, held that ineffective assistance of appellate
counsel did not serve as cause because”[c]ounsel’s failure to
file a timely application for reopening because he had a heavy
case load does not constitute an objective factor external to
the defense.” We disagree. The external cause for the
petitioner’s non-compliance with Rule 26(B) is provided by
the continued deficiencies in the office of the Ohio Public
Defender. Although the petitioner states in his appellate brief
that the cause for his procedural default was ineffective
No. 97-4066 White v. Schotten 7
defendant had been a minister at their church and was a
"family" man. Perry described the defendant as truthful.
In rebuttal, the state called Deborah Brown who swore
she spoke with the defendant in Cleveland on the
afternoon before the shooting between 3:40 p.m. and
3:55 p.m. The defendant allegedly asked Brown whether
she had seen White. Patricia Laster also averred she saw
the defendant in his auto between 3:00 p.m. and 4:00
p.m. on November 4, 1988. Both women testified they
had observed defendant strike White on previous
occasions.
State v. White, No. 1991 WL 8581 at *1-*3 (Ohio Ct. App.,
Jan. 31, 1991), aff'd, 647 N.E.2d 787 (Ohio 1995).
On May 12, 1989, a jury found White guilty of one count
of aggravated murder with a firearm specification and two
counts of felonious assault with firearm specifications. On
May 15, 1989, the trial court sentenced him to 20 years to life
for aggravated murder, three years for the firearms
specification, and 8-to-15 years on each count of felonious
assault, all to be served consecutively. On January 31, 1991,
the Ohio Court of Appeals overruled the petitioner’s
assignments of error, but sua sponte ordered the trial court to
vacate one of his convictions for felonious assault under the
allied offenses doctrine. The court of appeals’s decision was
journalized on February 11, 1991.
Although the petitioner obtained representation from the
Office of the Ohio Public Defender in 1991, the attorney
assigned to White’s case did not file an application for
reopening alleging that his appellate counsel had rendered
ineffective assistance in failing to raise four assignments of
error until three years later, on February 16, 1994. The court
of appeals denied White’s application for reopening, finding
it to be untimely based on Ohio App. R. 26(B), which
provides:
A defendant in a criminal case may apply for reopening
of the appeal from the judgment of conviction and

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8 White v. Schotten No. 97-4066
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 application shows good
cause for filing at a later time.
The petitioner attached to his application for reopening an
affidavit from his attorney stating that he had been assigned
White’s case in 1991 but had been unable to review the merits
of the case until late 1993, as a result of his office’s
“overwhelming caseload” and his own “personal heavy
caseload.” White’s counsel argued that his heavy caseload
served as “good cause,” as that phrase is used in Rule 26(B),
to excuse his tardiness. The Ohio Court of Appeals rejected
that argument, stating that “an applicant’s ignorance of App.
R. 26(B) or its procedural requirements will not establish
good cause for the untimely filing of an application for
reopening,” and that “an ‘office’s overwhelming caseload and
my personal heavy caseload’ does not establish good cause
for the untimely filing of an application for reopening as
brought pursuant to App. R. 26(B).” The Ohio Supreme
Court affirmed that decision, see State v. White, 647 N.E.2d
787 (Ohio 1995), and the United States Supreme Court denied
certiorari. See White v. Ohio, 516 U.S. 892 (1995).
White then filed a petition for writ of habeas corpus in the
United States District Court for the Northern District of Ohio,
raising the following claims:
(1) violation of petitioner’s rights to due process and a
fair trial as guaranteed by the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution on the
grounds of prosecutorial misconduct; (2) petitioner’s
Fifth and Fourteenth Amendment rights against self-
incrimination, to due process and a fair trial were denied
when the trial court repeatedly allowed introduction of
other acts evidence and extrinsic evidence of petitioner’s
character to be presented to the jury; (3) petitioner’s
Sixth and Fourteenth Amendment rights to confrontation
No. 97-4066 White v. Schotten 13
cert. denied, 120 S.Ct. 110 (1999), “[t]he alternative holding
thus does not require us to disregard the state court’s finding
of procedural bar.”
We turn next to the third Maupin factor, which requires us
to consider whether the state procedural rule is an adequate
and independent state ground to foreclose federal relief. Such
a rule is adequate if it is regularly or consistently applied by
the state court, see Johnson v. Mississippi, 486 U.S. 578, 587
(1988), and is independent if it does not "depend[ ] on a
federal constitutional ruling." Ake v. Oklahoma, 470 U.S. 68,
75 (1985); see also Mapes v. Coyle, 171 F.3d 408, 421 (6th
Cir. 1999), petition for cert. filed, 68 USLW 3116 (July 29,
1999) No. 99-203) (“[T]he fact that a petitioner has not
complied with a state procedural rule cannot bar federal
review of constitutional claims if the state rule is not ‘firmly
established and regularly followed.’”) (internal quotation
marks and citation omitted)).
White argues that the “good cause” requirement of Ohio’s
App. R. 26(B) does not constitute an adequate and
independent state ground because it is neither firmly
established nor uniformly applied by the Ohio courts. In
support of his argument, White cites to instances in which
courts have allowed delays well after the 90-day deadline and
also argues that Rule 26(B) does not provide any clear
guidelines for determining when a petitioner can file his
petition beyond the 90-day filing period.
A review of the Ohio court of appeals cases attached to
Petitioner’s brief reveals that the state courts have not
achieved consensus on what constitutes “good cause” to
excuse non-compliance with Rule 26(B). See, e.g., State v.
McCarter, No. 62346 (Ohio App. 8 Dist., Aug. 12, 1994)
(holding pro se status and ignorance of the law did not
constitute “good cause” to excuse filing of application for
reopening almost three years after journalization and seven
months after effective date of new Rule 26(B)); State v.
Nitenson, No. 91 CA 796, 1994 WL 69894 (Ohio App. 4
Dist., Feb. 24, 1994) (holding pro se status constitutes good

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12 White v. Schotten No. 97-4066
1He argues further that his application for reopening was a nullity
because the court held that it had already decided his claims on direct
appeal. A review of petitioner’s direct appeal brief and the appeals
court’s resolution reveals that the court had indeed decided the merits of
petitioner’s claims regarding the admission of other acts testimony,
hearsay evidence, and extensive evidence to impeach his credibility, but
those claims had only been framed and ruled upon as violations of state
law. The import of the claim raised in the application for reopening was
that White’s appellate counsel rendered ineffective assistance in failing
to raise those claims as violations of federal law. Indeed, the petitioner
does not contend that he raised those claims as violations of federal law
in his direct appeal, but instead that this court should deem it so based on
the court of appeals’s language in denying the application for reopening.
acts testimony, hearsay evidence, and extrinsic evidence
to impeach defendant’s character. In addition, this court
addressed the issue of prosecutorial misconduct in light
of the harmless error rule (Crim. R. 52(A)) and held that:
“Although the prosecutor repeatedly violated the rules of
evidence in this case, we are compelled to find these
errors harmless in light of the overwhelming evidence of
the defendant’s guilt. State v. Abrams (1974), 39 Ohio
St.2d 53; Chapman v. California (1967), 386 U.S.
18. . . . ”
Id. at 4-5.
White argues that the appeals court’s alternative holding –
that his claims would be barred by res judicata even if they
were not procedurally barred -- constitutes a decision on the
merits and that his claims, therefore, are not procedurally
barred.1 We cannot agree. As the Supreme Court has
explained, “a state court need not fear reaching the merits of
a federal claim in an alternative holding. By its very
definition, the adequate and independent state ground doctrine
requires the federal court to honor a state holding that is a
sufficient basis for the state court’s judgment, even when the
state court also relies on federal law.” Harris v. Reed, 489
U.S. 255, 264 n.10 (1989) (emphasis in original); accord
Sochor v. Florida, 504 U.S. 527, 533 (1992). As we
concluded in Coe v. Bell, 161 F.3d 320, 330 (6th Cir. 1998),
No. 97-4066 White v. Schotten 9
and cross-examination were denied when the prosecution
was permitted to introduce hearsay evidence in the form
of prior statements made by the decedent; and (4)
petitioner’s Sixth and Fourteenth amendment rights to
effective assistance of appellate counsel were denied
when: [a] appellate counsel failed to raise an issue on
appeal that but for counsel’s failure there is a reasonable
probability that the result of the appeal would have been
different and, [b] Ohio provides no remedy for
vindication of a denial of the defendant’s right to the
effective assistance of counsel.
The case was referred to a magistrate judge, who issued a
report and recommended that the petition be dismissed
because the claims were procedurally defaulted under Ohio
App. Rule 26(B) and because the petitioner was unable to
show cause and prejudice for the default. Over the petitioner’s
objections, the district court adopted the magistrate judge’s
report and recommendation and dismissed the petition based
on procedural default. This appeal followed.
ANALYSIS
White appeals the district court’s dismissal of his habeas
corpus petition on the basis of procedural default. In
considering a district court’s disposition of a habeas petition,
we review the district court’s legal conclusion de novo, and its
factual findings for clear error. See Carpenter v. Mohr, 163
F.3d 938, 942-43 (6th Cir. 1998), cert. granted, 120 S.Ct. 444
(1999).
Under Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986),
this circuit utilizes the following four-part analysis when the
state argues that a federal habeas claim has been procedurally
defaulted in state court: (1) whether there is a procedural rule
that is applicable to the petitioner's claim and whether the
petitioner failed to follow this rule; (2) whether the state
courts actually enforced the state procedural rule; (3) whether
the state procedural rule is an adequate and independent state
ground to foreclose federal relief; and if so (4) whether the

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10 White v. Schotten No. 97-4066
petitioner has established cause for his failure to follow the
rule and prejudice by the alleged constitutional error.
The petitioner contends that none of the first three factors
of the Maupin test have been met. He also argues, in the
alternative, that even if those three factors have been satisfied,
he is able to show cause and prejudice for his default under
the fourth factor, thereby entitling him to federal court review
of the merits of his habeas corpus claims. He also argues that
the court may excuse his procedural default because failure to
address the merits of his constitutional claims will result in a
fundamental miscarriage of justice. We consider each of the
four Maupin factors in turn, addressing petitioner’s arguments
in the process.
The first Maupin factor requires us to consider whether
there is a procedural rule that is applicable to the petitioner's
claim and whether he failed to follow that rule. The petitioner
argues that there was no procedural rule applicable to his
claim because Ohio’s App. R. 26(B) was not in effect at the
time his direct appeal was decided on January 31, 1991, and
he filed an application to reopen his appeal as soon as the
claim of appellate ineffectiveness was discovered. We find
this argument unmeritorious. Although White is correct that
prior to July 1, 1993, Rule 26 did not contain a distinct
provision for ineffective assistance of counsel claims, it did
set forth a ten-day time limit for the "application for
reconsideration of any cause or motion submitted on appeal."
Following the Ohio Supreme Court's recommendation that the
legislature adopt an amendment to better serve defendants
who allege ineffective assistance of appellate counsel, see
State v. Murnahan, 584 N.E.2d 1204 (Ohio 1992), Rule 26(B)
was enacted to provide a 90-day limit for ineffective
assistance of appellate counsel claims.
Rule 26(B) is clearly applicable to the petitioner's claim and
would have required White to file his motion to reopen within
90 days of its effective date, July 1, 1993. However, as the
Ohio Court of Appeals noted in denying White’s motion to
reopen, “[t]he application for reopening ... was not filed ...
No. 97-4066 White v. Schotten 11
until February 16, 1994, more than three years after
journalization of the appellate judgment, one year and eleven
months after the announcement of State v. Murnahan (1992),
63 Ohio St. 3d 60, and more than seven months after the
effective date of App. R. 26(B). On its face, the application
for reopening is untimely.” State of Ohio v. Frederick White,
No. 57944 slip op. at 1-2 (Ohio Ct. App., Oct. 19, 1994). We
thus conclude that there was an applicable rule in place and
that White failed to follow it.
Turning to the second Maupin factor, we must consider
whether the state courts actually enforced the state procedural
rule. The Ohio Court of Appeals held that it was compelled
to deny the petitioner’s application for reopening because it
was untimely under Rule 26(B) and no good cause existed to
excuse that untimeliness. The court also said:
Notwithstanding the fact that the application for
reopening is untimely, a substantive review of the
applicant’s supporting memorandum clearly
demonstrates that res judicata prevents the reopening of
the appellate judgment that was rendered in State v.
White (Jan. 31, 1991), Cuyahoga App. No. 57944,
unreported. The doctrine of res judicata prohibits a
defendant from relitigating any defense or claim of error
that has been previously raised on direct appeal. State v.
Perry, 10 Ohio St. 2d 175 (Ohio 1967). . . . In an attempt
to reopen the appellate judgment that was rendered by
this Court, the applicant raises four proposed
assignments of error which appellate counsel allegedly
failed to argue upon appeal. These four proposed
assignments of error address the following issues: (1)
other acts testimony (Evid. R. 404); (2) hearsay evidence
(Evid. R. 801); (3) extensive evidence to impeach
defendant’s character (Evid. R. 608); and (4)
prosecutorial misconduct. This court, however, has
previously examined upon direct appeal each of the
applicant’s four proposed assignments of error. Through
the fourth, fifth, and sixth assignments of error as raised
on direct appeal, this Court reviewed the issues of other

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