Fernando Lopez v. JULIUS WILSON, Warden

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0020P (6th Cir.)
File Name: 04a0020p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
FERNANDO LOPEZ,
Petitioner-Appellant,
v.
JULIUS WILSON, Warden,
Respondent-Appellee.
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No. 01-3875
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 00-02416—Donald C. Nugent, District Judge.
Argued: September 16, 2003
Decided and Filed: January 15, 2004
Before: SUHRHEINRICH, COLE, and ROGERS, Circuit
Judges.
_________________
COUNSEL
ARGUED: Robert D. Little, LAW OFFICE OF ROBERT
LITTLE, Maplewood, New Jersey, for Appellant. Douglas R.
Cole, OFFICE OF THE ATTORNEY GENERAL OF OHIO,
Columbus, Ohio, for Appellee. ON BRIEF: Robert D.
Little, LAW OFFICE OF ROBERT LITTLE, Maplewood,
New Jersey, for Appellant. David M. Gormley, Thelma
2 Lopez v. Wilson No. 01-3875
Thomas Price, OFFICE OF THE ATTORNEY GENERAL
OF OHIO, Columbus, Ohio, for Appellee.
SUHRHEINRICH, J., delivered the opinion of the court, in
which ROGERS, J., joined. COLE, J. (p. 19), delivered a
separate opinion concurring in the judgment.
_________________
OPINION
_________________
I. Introduction
SUHRHEINRICH, Circuit Judge. Under Rule 26(B) of the
Ohio Rules of Appellate Procedure, an Ohio defendant
seeking to file an ineffective assistance of appellate counsel
claim must file an application to reopen in the state court of
appeals where the appeal was decided rather than in a state
trial court. In White v. Schotten, 201 F.3d 743, 752-53 (6th
Cir.), cert. denied, 531 U.S. 940 (2000), this Court held that
an application to reopen appeal under Rule 26(B) of the Ohio
Rules of Appellate Procedure is part of a criminal defendant’s
direct appeal, rather than part of the state’s post-conviction
process. The difference matters because a defendant is
constitutionally entitled to counsel only during the direct
appeal process. Compare Evitts v. Lucey, 469 U.S. 387, 396
(1985) (holding that a defendant is entitled to effective
assistance of counsel on direct appeal), with Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987) (holding that a defendant is
not constitutionally entitled to counsel at any stage of
criminal proceedings beyond a direct appeal as of right).
Based on White, Petitioner Fernando Lopez claims in this
habeas action that the state court’s denial of his request for
appointment of counsel to file a Rule 26(B) motion violated
his federal constitutional rights. Lopez appeals from the order
of the district court denying his petition for writ of habeas
corpus on this ground. See 28 U.S.C. § 2254. This Court
granted a certificate of appealability on that issue.

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No. 01-3875 Lopez v. Wilson 3
1Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C.
§ 2254 (d)(1) (1994 & Supp. VII) (AE DPA ).
For the reasons that follow, we conclude that White is not
controlling in this case, because the White decision predates
the AEDPA,1 which applies here, and that under the AEDPA,
the state court’s decision was not contrary to clearly
established Federal law. We hold that the district court did
not err in denying the writ.
II. Background
A. Rule 26(B)
On July 1, 1993, Rule 26(B) of the Ohio Rules of Appellate
Procedure took effect. That rule provides in relevant part:
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 Ohio Supreme Court adopted this rule after its decision
in State v. Murnahan, 584 N.E.2d 1204 (Ohio 1992). In
Murnahan, counsel on direct appeal submitted an Anders
brief and was permitted to withdraw. Murnahan filed a pro se
brief, but the Ohio Court of Appeals rejected his appeal.
Murnahan next sought post-conviction relief in the state trial
court under Ohio Rev. Code § 2953.21, claiming that his
appellate counsel had been ineffective. The Ohio Supreme
Court held that ineffective assistance of appellate claims are
not cognizable in post-conviction proceedings pursuant to
Ohio Rev. Code. § 2953.21, because it would be improper for
an inferior court to rule on the adequacy of a proceeding in a
4 Lopez v. Wilson No. 01-3875
2The Staff N ote to the 7-1-93 A mendme nt states in relevant p art:
The 1993 amendment was in response to the Supreme
Court’s opinion in State v. Murnahan (1992), 63 Ohio St. 3d 60,
66 n.6. In Murnahan, the Co urt held that claims of ineffective
assistance of appellate counsel may be raised in an application
for reconsideration in the court of appeals, syl. 1, and requested
that a rule be drafted to govern suc h applications. Id. at 66 n.6.
App. R. 26 p reviously permitted applications for
reconsideration to be filed within ten days of the journalization
or announcement of the appellate decision. The Court noted in
Murnahan that although reconsideration under Rule 26 appeared
to be restricted to issues already presented to the ap pellate court,
the Court “construe[d] claims of ineffective assistance of
app ellate counsel to be tantamount to constitutional claims that
should have been presented on appea l, and but for their omission
the outcome of the case would be otherwise.” Id. at 65 n.3 .
Because “claims of ineffective assistance of appellate counsel
may be left undiscovered due to the inadequacy of appellate
counsel or the inability of the defendant to identify such errors
within the time allotted for reconsideration,” the Court stated
that it may be necessary for defendants to request delayed
reconsideration. Id. at 65-66. The amend ment thus provides for
reconsideration in criminal cases beyond the previous limitation
of time. The rule permits delayed reconsideration only of the
superior appellate court. The Court held that a defendant had
a remedy nonetheless, by raising such claims in the Ohio
appellate courts under the then-extant version of Rule 26.
Murnahan 584 N.E.2d, 1290 n. 3. Although by its terms Rule
26 seems to permit only reconsideration of “any cause or
motion originally submitted on appeal,” the Ohio Supreme
Court “construe[d] 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.
At the same time, the Murnahan court recognized the
imperfect fit between Rule 26 and ineffective assistance of
appellate claims and recommended that Rule 26 be amended.
Id. at 1209 n.6. In response, the Ohio Supreme Court
amended the rule in 1993, adding the above-quoted
subsection.2 However, neither the Ohio Supreme Court nor

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No. 01-3875 Lopez v. Wilson 5
direct appeal and does not ap ply to ap peals related to post-
conviction proceedings pursuant to R.C. 2953.21 . The
amendment permits applications to be filed more than ninety
days after the appellate judgment’s journalization if good cause
is shown. See App. R. 1 4(B ).
(Ohio R. A pp. P . 26(b ), Staff note to 7-1 -93 amendme nt).
the new rule indicated whether such proceedings were to be
treated as part of direct or collateral review.
This Court did so in White, supra. Counsel in that case did
not file a Rule 26(B) application until three years after the
ninety-day limit had expired. Noting that an attorney’s failure
to meet a deadline in handling a client’s appeal falls below
minimal standards of competency imposed on counsel to
satisfy constitutional safeguards, and that a defendant only
has a constitutional right to assistance of counsel on direct
appeal, the question became whether Rule 26(B) applications
were part of direct or collateral review. The White court
concluded that an application to reopen appeal under Rule
26(B) is part of a criminal defendant’s direct appeal, and
because of that, counsel was constitutionally required.
The State of Ohio argues . . . 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 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.
1999), 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, 50 Ohio St.3d 127, 553
N.E.2d 264 (Ohio1990); In re: Petition of Brown, 49
Ohio St.3d 222, 551 N.E.2d 954 (1990)). Furthermore,
Murnahan emphatically holds that any such attack
6 Lopez v. Wilson No. 01-3875
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.
White, 201 F.3d at 752-53.
B. Procedural History
Lopez was convicted in 1998 of three counts of rape and
three counts of gross sexual imposition. The lower courts
sentenced him to terms of life imprisonment on the rape
counts and three years of imprisonment on each of the
remaining counts. The Ohio Court of Appeals affirmed the
convictions and sentences on direct appeal. State v. Lopez,
No. 74096, 1999 WL 304527 (Ohio App. 1999). Lopez was
represented by counsel during that appeal.
In December 1999, more than six months after the state
court of appeals issued its judgment, 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
constitutionally ineffective. Lopez also asked the state court
of appeals to appoint new counsel for him. The appellate
court ordered a copy of his trial transcript 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 Lopez’s motion to
reopen the appeal and denied the motion for appointment of
counsel, finding that Lopez had not shown that his original
appellate lawyer was ineffective. State v. Lopez, No. 74096,

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No. 01-3875 Lopez v. Wilson 7
2000 WL 574441 (Ohio App. 2000). The Ohio Supreme
Court declined to review that judgment. State v. Lopez, 732
N.E.2d 999 (Ohio 2000).
On September 21, 2000, Lopez filed his federal habeas
petition, raising two claims: (1) he was denied his federal
right to the effective assistance of appellate counsel during his
application for reopening filed under Ohio Appellate Rule
26(B); and (2) he was denied his right to the effective
assistance of appellate counsel on his first direct appeal. The
district court denied the petition, and denied a certificate of
appealability. The court held that Lopez was not entitled to
habeas relief on these claims because the state court’s
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, 412 (2000). The district court noted as to the
first claim, a lack of Supreme Court precedent supporting a
right to counsel in an application to reopen a direct appeal.
The district court also observed that, in White, this Court held
that an Ohio criminal defendant has the right to counsel
during his application for reopening under Rule 26(B), but did
not find it dispositive because White was decided prior to
Williams, and therefore, this Court had no reason to analyze
the state court opinion under the Williams factors.
Lopez appealed to this Court. On February 14, 2002, this
Court 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).” Order dated
February 14, 2002.
On April 22, 2002, Respondent asked this Court to certify
the following question to the Ohio Supreme Court:
Is a proceeding filed in the Ohio court of appeals under
Rule 26(B) of the Ohio Rules of Appellate
Procedure–which provides in relevant part that a
8 Lopez v. Wilson No. 01-3875
“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”-- a civil, post-conviction or collateral
proceeding for challenging a final judgment in a criminal
case, or is it instead part of the defendant’s first-appeal-
of-right in the criminal case?
III. AEDPA
“Congress enacted AEDPA to reduce delays in the
execution of state and federal criminal sentences, . . . and to
further the principles of comity, finality, and federalism.”
Woodford v. Garceau, 123 S. Ct. 1398, 1401 (2003) (internal
citations and quotation marks omitted). Congress did so
through both procedural requirements, see David v. Hall, 318
F.3d 343, 346 (1st Cir. 2003) (stating that “[o]ne of AEDPA’s
main purposes was to compel habeas petitions to be filed
promptly after conviction and direct review, to limit their
number, and to permit delayed or second petitions only in
fairly narrow and explicitly defined circumstances” (citing 28
U.S.C. § 2244(d)(1)(A)-(D); H.R.Rep. No. 104-518 at 111
(1996)), and standards governing the merits of a habeas
application. See Woodford, 123 S. Ct. 1401. One of the
mechanisms for accomplishing these goals was an amended
version of 28 U.S.C. § 2254(d)(1), which places “new
constraint[s] on the power of a federal habeas court to grant
a state prisoner’s application for a writ of habeas corpus with
respect to claims adjudicated on the merits in state court.”
Williams v. Taylor, 529 U.S. 362, 412 (2000).
The Act provides in relevant part as follows:
(d) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim–

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No. 01-3875 Lopez v. Wilson 9
3Ironically, in its opinion denying Petitioner’s pro se application to
reopen direct appeal, the Ohio Court of App eals cited White v. Schotten,
albeit for a different proposition:
The fact that applicant’s appellate couns el did not present the
assignm ents of error as federal constitutional violations does not
preclude applicant from raising these issues in a federal habeas
petition and having them reviewed by a federal court if counsel’s
failure to do so am ounted to ineffective assistance of appellate
counsel. See White v. Schotten , (6th Cir.2000), 201 F.3d 743.
Consequently, applicant is not prejudiced [because his appellate
(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.
28 U.S.C. § 2254(d)(1). In Williams, supra, the Supreme
Court explained the meaning of “contrary to” and
“unreasonable application.” A state court’s legal decision is
“contrary to” clearly established federal law under §
2254(d)(1) if the state court arrived at a conclusion opposite
to that reached by the Supreme Court on a question of law or
if the state court decided a case differently than the Supreme
Court’s decisions on materially indistinguishable facts. Id. at
412-13. An “unreasonable application” occurs when the state
court correctly identified the correct legal principle from
Supreme Court precedent but unreasonably applied that
principle to the facts of the case before it. Id. “[C]learly
established Federal law, as determined by the Supreme
Court,” refers to “the holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions as of the time of the relevant
state-court decision.” Id. at 412.
Thus, according to the AEDPA and the Supreme Court, our
inquiry begins with the relevant state court decision. Here,
the Ohio Court of Appeals denied Lopez’s motion for
appointment of counsel on May 11, 2000, stating merely that
“Motion by Appellant, Pro Se, For Appointment of Counsel
is Denied.”3 The state court did not identify controlling
10 Lopez v. Wilson No. 01-3875
counsel did not raise federal issues in state court].
State v. Lopez, No. 74096, 2000 WL 574441, at *3 (N.D. Ohio May 11,
200 0).
Supreme Court precedent or otherwise explain its reasoning.
However, the state court decision need not cite Supreme
Court precedent, or even reflect awareness of Supreme Court
cases, “so long as neither the reasoning nor the result of the
state-court decision contradicts them.” Early v. Packer, 537
U.S. 3, 8 (2002) (per curiam).
IV. Analysis
A. Merits
Lopez argues that the district court erred in denying the writ
because the United States Supreme Court has found a
constitutional right to appointed counsel, and this Court has
ruled that Ohio’s application to reopen a direct appeal is a
direct appeal requiring the appointment of counsel. See
White, supra. Were this case not governed by the AEPDA,
White, a pre-AEDPA decision, would be controlling and
Lopez would easily prevail on this point. However, the
AEDPA applies here, requiring us to analyze the
constitutional question under the more deferential standards
set forth by that Act. Compare Taylor v. Withrow, 288 F.3d
846, 850 (6th Cir. 2002) (noting that the AEDPA “sets a
higher hurdle for those seeking habeas than before”), cert.
denied, 537 U.S. 1007 (2002), with McQueen v. Scroggy, 99
F.3d 1302, 1310 (6th Cir. 1996) (pre-AEDPA case; stating
that de novo standard of review applies to questions of federal
constitutional law). See also Price v. Vincent, 123 S. Ct. 1848
(2003) (reiterating § 2254 standards, as explained by Williams
court; faulting Sixth Circuit for reciting this standard but then
evaluating the respondent’s claim de novo rather than through
the lens of § 2254(d)). In short, because the standard of
review is much more deferential under the AEDPA, White is
not controlling.

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No. 01-3875 Lopez v. Wilson 11
The White decision involved the application of Evitts to “a
unique aspect of Ohio law,” Rule 26(B). See McClendon v.
Sherman, 329 F.3d 490, 494 (6th Cir. 2003). Prior to
determining the federal constitutional question of whether the
petitioner was entitled to counsel in filing his application to
reopen direct appeal, the White court determined whether a
state procedural rule, 26(B), was part of direct or collateral
review. As a panel of this Court recently explained:
[In White] [w]e first noted that “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
standards.” Id. at 752 (citing Strickland v. Washington,
466 U.S. 668, 698 . . . (1984), and Ludwig v. United
States, 162 F.3d 456, 459 (6th Cir. 1998)). While the
Ohio Public Defender indisputably and grossly failed to
abide the ninety-day deadline for 26(B) applications and
therefore rendered ineffective assistance of counsel, this
conclusion alone does not establish a constitutional
violation because a defendant only has a constitutional
right to effective assistance of counsel when there is a
constitutional right to effective assistance of counsel
when there is a constitutional right to assistance of
counsel simpliciter. As there is such a constitutional
right only on direct and not on collateral review, the
resolution of [the] case depended on this classification
of 26(B) applications. Ibid. (citing Pennsylvania v.
Finley, 481 U.S. 551, 555 . . . (1987)). We noted that
challenges to the constitutional effectiveness of appellate
counsel cannot be brought in Ohio habeas proceedings.
Ibid. (citing Manning v. Alexander, 912 F.2d 878, 882
(6th Cir. 1990)). Then we concluded that such
challenges cannot be brought in any Ohio post-
conviction proceedings. Ibid. (citing Murnahan, 584
N.E.2d at 1208 (holding “that claims of ineffective
assistance of appellate counsel are not cognizable in post-
conviction proceedings pursuant to R.C. 2953.21.”
12 Lopez v. Wilson No. 01-3875
4Under 28 U.S.C. § 2244(d)(1)(A), a conviction becomes final for
purposes of the one-year period of limitations upon “conclusion of direct
review or the expiration of the time for seeking such review.” Section
2244(d)(2) provides that “[t]he tim e during which a properly filed
application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.” In other words,
“[s]ection 2244 explicitly distinguishes between the conclusion of direct
review, after which the limitation period begins to run, 28 U.S.C.
§ 2244(d )(1)(A), and post-conviction remedies, during which the
limitation period is merely tolled, § 2244(d)(2).” McClendon v. Sherman,
329 F.3d 490, 493 (6th Cir. 2003).
(emphasis added)). If 26(B) proceedings were not part of
the Ohio habeas or other post-conviction review, we
reasoned, they must be part of direct review. Ibid. If
they were part of direct review, White had a
constitutional right to effective assistance of counsel. Id.
at 752-53, 584 N.E.2d 1204. As he had been denied such
assistance, we remanded for consideration of the merits
of his claims. Id. at 754, 584 N.E.2d 1204. The United
States Supreme Court denied certiorari. Bagley v. White,
531 U.S. 940 . . . (2000) (mem.).
Lambert v. Warden, Ross Correctional, No. 01-34222, 2003
WL 22071466, at *3 (6th Cir. Sept. 2, 2003) (emphasis
added).
While several of our published cases have purported to
apply the rule of White in the AEDPA setting, see Bronaugh
v. Ohio, 235 F.3d 280 (6th Cir. 2000); Searcy v. Carter, 246
F.3d 515, 519 (6th Cir. 2002); Miller v. Collins, 305 F.3d
491, 493-95 (6th Cir. 2002); Griffin v. Rogers, 308 F.3d 647,
655 (6th Cir. 2002), in each of those cases, the question of
whether a Rule 26(B) motion was part of direct or collateral
review was decided in the context of the proper application of
the AEDPA statute of limitations and its tolling provision,
28 U.S.C. § 2244(d)(1)(A) & (d)(2).4 In determining whether
a habeas petition is barred by the statute of limitations, a
federal court is not provided with a state court decision on the

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No. 01-3875 Lopez v. Wilson 13
issue, to which it owes deference under AEDPA, because no
state court will have the opportunity to consider the issue. By
contrast, in cases such as this, in which a federal court must
consider the nature of 26(B) application to determine whether
a criminal defendant has the right to counsel in filing such an
application, the federal court must grant AEDPA deference to
the state court’s conclusion that the defendant was not entitled
to appointed counsel. Accordingly, even those post-AEDPA
Sixth Circuit decisions considering the nature of 26(B)
applications for the purpose of determining the timeliness of
habeas petitions do not engage in the analysis required here
– a determination of whether a state court’s decision is
contrary to or an unreasonable application of federal law –
and the holdings at those cases are properly limited to such
cases.
We now turn to the “clearly established Federal law” at the
time of the Ohio Court of Appeals’ decision. Evitts v. Lucey,
469 U.S. 387 (1985), which White itself relied upon, provides
the best overview of the applicable Supreme Court precedent:
Almost a century ago, the Court held that the
Constitution does not require States to grant appeals as of
right to criminal defendants seeking to review alleged
trial court errors. McKane v. Durston, 153 U.S. 684 . . .
(1894). Nonetheless, if a State has created appellate
courts as “an integral part of the . . . system for finally
adjudicating the guilt or innocence of a defendant,”
Griffin v. Illinois, 351 U.S., at 18 . . . , the procedures
used in deciding appeals must comport with the demands
of the Due Process and Equal Protection Clauses of the
Constitution. In Griffin itself, a transcript of the trial
court proceedings was a prerequisite to a decision on the
merits of an appeal. See id., at 13-14 . . . . We held that
the State must provide such a transcript to indigent
criminal appellants who could not afford to buy one if
that was the only way to assure an “adequate and
effective” appeal. Id. at 20 . . . ; see also Eskridge v.
Washington State Board of Prison Terms and Paroles,
14 Lopez v. Wilson No. 01-3875
357 U.S. 214, 215 . . . (1958) (per curiam) (invalidating
state rule giving free transcripts only to defendants who
could convince a trial judge that “justice will thereby be
promoted”); Burns v. Ohio, 360 U.S. 252 . . . (1959)
(invalidating state requirement that indigent defendants
pay fee before filing notice of appeal of conviction);
Lane v. Brown, 372 U.S. 477 . . . (1963) (invalidating
state procedure whereby meaningful appeal was possible
only if public defender requested a transcript); Draper v.
Washington, 372 U.S. 487 . . . (1963) (invalidating state
procedure providing for free transcript only for a
defendant who could satisfy the trial judge that his appeal
was not frivolous).
Just as a transcript may by rule or custom be a
prerequisite to appellate review, the services of a lawyer
will for virtually every layman be necessary to present an
appeal in a form suitable for appellate consideration on
the merits. See Griffin, supra, 351 U.S. at 20 . . . .
Therefore, Douglas v. California, supra, recognized that
the principles of Griffin required a State that afforded a
right of appeal to make that appeal more than a
“meaningless ritual” by supplying an indigent appellant
in a criminal case with an attorney. 372 U.S. at 358 . . . .
This right to counsel is limited to the first appeal as of
right, see Ross v. Moffitt, 417 U.S. 600 . . . (1974), and
the attorney need not advance every argument, regardless
of merit, urged by the appellant, see Jones v. Barnes, 463
U.S. 745 . . . (1983). But the attorney must be available
to assist in preparing and submitting a brief to the
appellate court, Swenson v. Bosler, 386 U.S. 258 . . .
(1967) (per curiam), and must play the role of an active
advocate, rather than a mere friend of the court assisting
in a detached evaluation of the appellant’s claim. See
Anders v. California, 386 U.S. 738 . . . (1967); see also
Entsminger v. Iowa, 386 U.S. 748 . . . (1967).
Evitts, 469 U.S. at 393-94.

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No. 01-3875 Lopez v. Wilson 15
As Evitts’ canvassing of the relevant precedent reflects, the
Supreme Court has never held that a criminal defendant has
the right to assistance of counsel to file an application to
reopen a direct appeal. The question becomes whether the
facts of the present case are “materially indistinguishable”
from one of the foregoing decisions but with a different
result. See Williams, 529 U.S. at 406. None of the foregoing
cases are factually analogous, however. To begin with, only
a few of those cases actually deal with access to counsel per
se, and only two, Douglas v. California, 372 U.S. 353 (1963),
and Evitts, found the right to assistance of counsel on appeal
as of right. In Douglas, the indigent defendants were denied
their request for the assistance of counsel on appeal as of
right. The Douglas court found that the defendants were
denied equal protection of the law where their one appeal of
right was decided without the benefit of counsel. The
Douglas Court analogized to Griffin v. Illinois, 351 U.S. 12
(1956):
In Griffin v. Illinois, we held that a State may not grant
appellate review in such a way as to discriminate against
some convicted defendants on account of their poverty.
There, as in Draper v. Washington, 372 U.S. 487, . . . the
right to a free transcript on appeal was in issue. Here the
issue is whether or not an indigent shall be denied the
assistance of counsel on appeal. In either case the evil is
the same: discrimination against the indigent. For there
can be no equal justice where the kind of an appeal a man
enjoys ‘depends on the amount of money he has.’ Griffin
v. Illinois, supra, at p. 19 . . . .
Douglas, 372 U.S. at 355. Significantly, the Supreme Court
limited its holding as follows:
We are not here concerned with problems that might
arise from the denial of counsel for the preparation of a
petition for discretionary or mandatory review beyond
the stage in the appellate process at which the claims
have once been presented by a lawyer and passed upon
16 Lopez v. Wilson No. 01-3875
by an appellate court. We are dealing only with the first
appeal, granted as a matter of right to rich and poor alike
(Cal. Penal Code §§ 1235, 1237), from a criminal
conviction.
Douglas, 372 U.S. at 356.
In Evitts, the defendant’s retained counsel filed a timely
notice of appeal but failed to file the statement of appeal as
required by a state rule of appellate procedure when he filed
the brief and record on appeal, resulting in dismissal of the
appeal. Thus, the issue in Evitts was whether the Due Process
Clause of the Fourteenth Amendment guarantees the criminal
defendant the right to the effective assistance of counsel on his
first appeal as of right. The Supreme Court held that it did.
The Supreme Court found no right to appointed counsel in
Ross v. Moffitt, 417 U.S. 600 (1974) and Pennsylvania v.
Finley, 481 U.S. 551 (1987). In Ross, the defendant was
denied appointment of counsel for discretionary review, after
his convictions were affirmed on his appeals of right by the
state court of appeals. The Ross Court held that the rule of
Douglas did not extend to discretionary state appeals and for
petitions of certiorari. In Finley, the Supreme Court held that
a state law providing prisoners assistance of counsel in
collateral postconviction proceedings did not require full
procedural protections which the Constitution extends for trial
and first appeal as of right. The Finley Court reasoned that
“since a defendant has no constitutional right to counsel when
pursuing a discretionary appeal on direct review of his
conviction, a fortiorari, he has no such right when attacking
a conviction that has long since become final upon exhaustion
of the appellate process.” Id. at 555.
Here, Lopez’s request for appointed counsel to file an
application to reopen his first appeal as of right is somewhere
“beyond the stage in the appellate process at which the claims
have once been presented by a lawyer and passed upon by an
appellate court.” Douglas, 372 U.S. at 356. Although a panel

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No. 01-3875 Lopez v. Wilson 17
of this Court upon de novo review has determined that such
a motion falls under the rubric of a direct appeal, under the
more deferential standard of review set forth in the AEDPA,
it cannot be said that the Ohio Court of Appeals’ decision
denying the right to appointed counsel was contrary to
“clearly established Federal law as determined by the
Supreme Court,” because the result is not different from a
case with materially indistinguishable facts.
In sum, as the district court held, the decision of the state
appellate court denying Lopez’s request for appointment of
counsel was not contrary to “clearly established Federal law,
as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1).
B. Motion to Certify
The Warden has also asked us to certify to the Ohio
Supreme Court the question of whether a Rule 26(B) motion
to reopen is properly characterized as a civil, post-conviction
proceeding for challenging a final judgment in a criminal
case, or is instead part of the defendant’s first appeal as of
right in a criminal case. Rightly or wrongly, see Lambert,
2003 WL 22071466, at *7-8, this question has already been
addressed by this Circuit in White. Thus, a request for further
clarification by the Ohio Supreme Court by this panel would
be improper, because the only reason for this panel to certify
a question would be to revisit the prior panel’s decision,
which we cannot do. See Salmi v. Secretary of Health &
Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“A panel
of this Court cannot overrule the decision of another panel.
The prior decision remains controlling authority unless an
inconsistent decision of the United States Supreme Court
requires modification of the decision or this Court sitting en
banc overrules the prior decision.”); see also 6th Cir. Rule
206(c) (stating that a published panel opinion is binding on all
subsequent panels). In any event, we would not be bound by
the state courts’ characterization of Rule 26(B) proceedings
18 Lopez v. Wilson No. 01-3875
for purposes of determining whether the federal question
presented.
V. Conclusion
For the foregoing reasons, the judgment of the district court
denying Petitioner’s petition for writ of habeas corpus is
AFFIRMED. Petitioner’s motion to certify is DENIED.

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No. 01-3875 Lopez v. Wilson 19
___________________
CONCURRENCE
___________________
R. GUY COLE, JR., Circuit Judge, concurring in the
judgment. I concur only in the judgment reached by the
majority and agree that Lopez’s petition for a writ of habeas
corpus must be denied. The crucial inquiry in this case is
whether the state’s decision to deny Lopez counsel with
respect to his motion to reopen an appeal was contrary to
clearly established federal law as determined by the United
States Supreme Court. Because the Supreme Court has not
established that criminal defendants are entitled to counsel in
a motion to reopen an appeal nor that such a motion is part of
a direct appeal, Lopez is not entitled to habeas relief pursuant
to the AEDPA. Absent clearly established law by the
Supreme Court with respect to those issues, the state court
was not bound by this Circuit’s characterization of Rule
26(B) proceedings as part of a criminal defendant’s direct
appeal.

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