Eduardo Bonilla v. PAT HURLEY, Warden

*An abbreviated order of this opinion was originally issued as an
“unpublished decision” filed on April 27, 2004. The court is now
substituting this more fully reasoned opinion which is recommended for
full-text publication.
**The Honorable Judith M. Barzilay, United States Judge for the
Court of International Trade, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0162P (6th Cir.)
File Name: 04a0162p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
EDUARDO BONILLA,
Petitioner-Appellant,
v.
PAT HURLEY, Warden,
Respondent-Appellee.
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No. 03-3153
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 02-00334—Michael R. Merz, Magistrate Judge.
Submitted: March 26, 2004
Decided and Filed: April 27, 2004*
Before: GUY and GILMAN, Circuit Judges; BARZILAY,
Judge.**
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_________________
COUNSEL
ON BRIEF: James P. Fleisher, BIESER, GREER &
LANDIS, Dayton, Ohio, for Appellant. M. Scott Criss,
OFFICE OF THE ATTORNEY GENERAL, Columbus,
Ohio, for Appellee.
_________________
OPINION
_________________
PER CURIAM. Eduardo Bonilla, an Ohio prisoner
proceeding through counsel, appeals a magistrate judge’s
judgment dismissing his petition for a writ of habeas corpus
filed pursuant to 28 U.S.C. § 2254. The parties have waived
oral argument and this panel unanimously agrees that oral
argument is not needed in this case. Fed. R. App. P. 34(a).
On October 9, 1999, a jury found Bonilla guilty of
complicity to aggravated murder, conspiracy to aggravated
murder, complicity to murder, conspiracy to murder,
complicity to kidnaping, and complicity to obstructing justice.
On November 16, 1999, Bonilla was sentenced to serve life
imprisonment for complicity to aggravated murder,
conspiracy to aggravated murder, and conspiracy to murder;
fifteen years to life imprisonment for complicity to murder;
ten years of imprisonment for complicity to kidnaping; and
five years of imprisonment for complicity to obstructing
justice, to be served consecutively. The Ohio Court of
Appeals, Second Appellate District, affirmed Bonilla’s
convictions on March 2, 2001. The Ohio Supreme Court
denied Bonilla’s motion for leave to file a delayed appeal on
July 25, 2001.
After unsuccessfully pursuing a post-conviction application
to reopen his direct appeal, Bonilla, proceeding pro se, filed

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No. 03-3153 Bonilla v. Hurley 3
the instant petition for a writ of habeas corpus, in which he
asserted six grounds for relief. The district court
subsequently appointed counsel to represent Bonilla because
English is his second language.
The parties consented to have a magistrate judge exercise
jurisdiction over the case pursuant to 28 U.S.C. § 636.
Thereafter, the magistrate judge dismissed Bonilla’s habeas
corpus petition, and subsequently granted his application for
a certificate of appealability as to the following issue:
“whether Petitioner is barred from merit consideration of his
habeas petition by his procedural default in failing to timely
appeal to the Ohio Supreme Court.” Bonilla filed a timely
appeal. The parties have waived oral argument.
Bonilla’s habeas corpus petition was filed after the effective
date of the Antiterrorism and Effective Death Penalty Act
(AEDPA). Therefore, our review of this case is governed by
the AEDPA’s provisions. Mason v. Mitchell, 320 F.3d 604,
613 (6th Cir. 2003).
All six of Bonilla’s grounds for relief were raised on direct
appeal before the Ohio Court of Appeals. The Ohio Court of
Appeals affirmed Bonilla’s convictions on March 2, 2001.
Bonilla had forty-five days following the court of appeal’s
decision, or until April 16, 2001, to file an appeal with the
Ohio Supreme Court. See Ohio Sup. Ct. R. II, § 2(A)(1)(a).
On June 11, 2001, after expiration of the 45-day appeal
period, Bonilla filed a motion for leave to file a delayed
appeal, which is permitted by the Ohio Supreme Court Rules
upon a demonstration of “adequate reasons for the delay.”
See Ohio Sup. Ct. R. II, § 2(A)(4)(a). The reasons offered by
Bonilla for his failure to file a timely notice of appeal
included his pro se status because “[d]ue to indigence, [he]
was forced to terminate the representation of his counsel,” his
inability to obtain a complete copy of his trial transcripts
before the expiration of the 45-day appeal period, the fact that
English is his second language and he has “great difficulty
with reading and writing the lenguage [sic],” and as an Ohio
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prisoner, he is only permitted four hours per week “for legal
research” and is provided “no assistance with preparation of
legal documents.” On July 25, 2001, the Ohio Supreme Court
denied Bonilla’s motion for leave to file a delayed appeal in
a form entry.
This case turns upon whether the Ohio Supreme Court
entry denying Bonilla’s motion for leave to file a delayed
appeal constitutes a procedural ruling sufficient to bar federal
court review of Bonilla’s habeas corpus petition. Upon
examination of the Ohio Supreme Court Rules, we conclude
that it does. The Ohio Supreme Court Rules require a motion
for a delayed appeal to state “the date of entry of the
judgment being appealed and adequate reasons for the delay.”
Ohio Sup. Ct. R. II, Section 2(A)(4)(a). In addition, the
motion must be accompanied by a supporting affidavit and a
“copy of the decision being appealed.” Id. A motion for a
delayed appeal is not required to contain the actual claims and
supporting arguments sought to be presented on appeal. Id.
Instead, only when “the Supreme Court grants a motion for
delayed appeal,” is the appellant required to “file a
memorandum in support of jurisdiction.” Ohio Sup. Ct. R. II,
Section 2(A)(4)(c). Thus, the applicable Ohio court rules
indicate that the denial of a motion for a delayed appeal is a
procedural ruling, not a ruling on the merits. Indeed, this
court has previously reached this conclusion, albeit in
unpublished opinions. See Hall v. Huffman, No. 98-3586,
2000 WL 1562821, at *3 (6th Cir. Oct. 11, 2000)
(unpublished); Shabazz v. Ohio, No. 97-3085, 1998 WL
384559, at *1 (6th Cir. June 18, 1998) (unpublished).
We therefore conclude that Bonilla’s grounds for relief
have been procedurally defaulted. See Simpson v. Jones, 238
F.3d 399, 406 (6th Cir. 2000). Bonilla failed to file a timely
notice of appeal with the Ohio Supreme Court and his motion
for leave to file a delayed appeal was denied by that court
apparently because he failed to demonstrate adequate reasons
for his failure to file a timely notice of appeal or to otherwise
comply with the provisions of Ohio Sup. Ct. R. II, Section

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No. 03-3153 Bonilla v. Hurley 5
2(A)(4). Where a state court is entirely silent as to its reasons
for denying requested relief, we assume that the state court
would have enforced any applicable procedural bar. Simpson
v. Sparkman, 94 F.3d 199, 203 (6th Cir. 1996).
“A petitioner procedurally defaults claims for habeas relief
if the petitioner has not presented those claims to the state
courts in accordance with the state’s procedural rules.” Jones,
238 F.3d at 406. When 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 . . . or demonstrate that failure
to consider the claims will result in a fundamental miscarriage
of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Since both cause and prejudice must be shown to excuse a
procedural default, the failure to establish cause eliminates the
need to consider prejudice. Murray v. Carrier, 477 U.S. 478,
494-95 (1986).
In order to establish cause, a habeas corpus petitioner must
show that “some objective factor external to the defense”
prevented the petitioner’s compliance with a state procedural
rule. Id. at 488. As cause to excuse the procedural default of
his grounds for relief, Bonilla argues that he was unable to
file a timely notice of appeal to the Ohio Supreme Court
because he was forced to proceed pro se due to the “sudden,
unexpected withdrawal of state appellate counsel,” he was
“not at all versed in the art of appellate legal practice and was
not aware of the rules relating to the filing of a Notice of
Appeal,” he was unable to obtain a complete copy of his trial
transcripts prior to the expiration of the 45-day period
provided for timely appeals to the Ohio Supreme Court, the
prison where he was incarcerated limited his legal research
time to four hours per week, and he was unfamiliar with the
English language.
None of Bonilla’s arguments establish cause to excuse his
procedural default. First, Bonilla’s pro se status before the
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Ohio Supreme Court is insufficient to establish cause to
excuse his procedural default. See Hannah v. Conley, 49 F.3d
1193, 1197 (6th Cir. 1995). Second, Bonilla’s ignorance of
the law and procedural requirements for filing a timely notice
of appeal is insufficient to establish cause to excuse his
procedural default. See id. Furthermore, Bonilla’s claim that
he lacked notice of the procedural requirements for filing an
appeal to the Ohio Supreme Court is specious in light of the
memorandum in support of his motion for leave to file a
delayed appeal that he filed with the Ohio Supreme Court on
direct review. In his memorandum, Bonilla referred to and
acknowledged the 45-day time period during which he was
required to file a timely appeal with the supreme court and
offered reasons to excuse his failure to file a timely appeal.
Third, Bonilla’s mistaken belief that he required a complete
copy of his trial transcripts prior to filing a notice of appeal
with the Ohio Supreme Court does not establish cause to
excuse his procedural default. See id. Fourth, the fact that
Bonilla’s time in the prison law library was limited to four
hours per week in insufficient to establish cause to excuse his
procedural default. Additionally, Bonilla does not indicate
why he required additional time to conduct legal research and
how his limited law library time prevented him from filing a
timely notice of appeal. Fifth, Bonilla’s unfamiliarity with
the English language is insufficient to establish cause to
excuse his procedural default because such alleged
unfamiliarity is not “external to [his] defense.” See Murray,
477 U.S. at 488. Moreover, the record indicates that Bonilla
was able to file a motion for a delayed appeal with supporting
memorandum, an affidavit of indigency, and a notice of
appeal before the Ohio Supreme Court despite his alleged
unfamiliarity with the English language.
In addition, Bonilla did not supplement his claims of
constitutional error with a colorable showing of actual
innocence so as to demonstrate a fundamental miscarriage of
justice which would permit review of his defaulted claims
even though cause had not been established. See McCleskey

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No. 03-3153 Bonilla v. Hurley 7
v. Zant, 499 U.S. 467, 494-95 (1991); Murray, 477 U.S. at
496. Thus, as a result of his unexcused procedural default,
the grounds for relief presented in Bonilla’s habeas corpus
petition may not be considered on federal habeas corpus
review.
Accordingly, we affirm the judgment of the magistrate
judge.

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