case number fourteen four two seven nine shorter versus rhonda richard oral argument not to exceed fifteen minutes per side lawrence is in cooley supervising attorney may approach and proceed my name is lauren cooley i'm an attorney with squire patton boggs and also the university of cincinnati sic circuit clinic i am introducing sara nelson a law student from the clinic who will be presenting her argument this morning the one your limitations period runs from the factual predicate of the when the due process claim comes into existence and that in this case is when the state denies the delayed appeal so the denial triggers period and the chance he made a distinction with respect to an appeal based claim which is the claim at issue in mr shorter's case so once the state denied his delayed appeal th deny his petition and say that the two that he has to appeal commences upon that the now because then petitioners can create their own  petition because there was no factual record before it to be able to ascertain as such but with respect to the appeal base claimed there was no finding of diligence in that regard because he had filed within the one year of imitation is period and because the appeal based claim so if your question is what how do we describe an appeal based claim then mackintosh the hudson northern district case explains the distinction as an appeal based claim specifically referring to the claim based on the r as compared to a conviction based claim which only refers to claims of constitutional error doing initial conviction and sentencing does that answer your question well it does but it doesn't mean i understand you say ok you're basing the  his claim on the denial of the appeal but the error here was in failing to tell him that he had a right to appeal and that occurred at the trial level and so i'm saying how do you really get into this difference if there is one issue on a well because this is a notice case and he was not notified of his right to appeal when he raises that claim to be a part court they have an opportunity to vindicate his right to appeal by hearing his appeal and by denying it specifically in this case with denying it without any discussion as to his claim or for any reason as to why they denied it why and exact same situation this whole discussion is presuming that there is a constitutional right that he was deprived of but we have that letter in the file  but here i mean the supreme court itself has said in the context of a federal conviction the mere failure to give the appell raids is not in and of itself a constitutional violation if the person knows i mean your client got it basically your client was in the position where he couldn't  because it was an agreed upon sentence and he couldn't appeal his conviction because it was a guilty plea so really all he could do was somehow claim that it was involuntary right he would have to just try to get out of it and he got a letter from his lawyer that said exactly that you can appeal and this is what would happen and so how do we say that i mean if you look at the supreme court indigency this is one possible avenue you could possibly explore but it would be an unlikely scenario and i believe about language in the negative not everybody necessarily infers positive something in the inverse when you're confronted with a bunch of negative terminology and follow up with this letter following the sentencing hearing that told him he could not appeal certain things mr shiner even says that he didn't believe he had a right to appeal wrong on the procedural ruling and there's always another problem there which is that you know and there's reason to believe there's a claim beyond well like you should have been told that he had the right to do that and at the sentencing hearing again he was only told he could not an appeal and as a chinese leader did not tell him back if you wanted to appeal what time limit he had to appeal and that it wouldn't cost him anything if you wanted to appeal  says i was not told of my appeal rights and they get it five years later then they say well we looked at the record and you weren't diligen first regularly do a factual determination on whether or not to defend their was notified of their right to appeal in that case law that i recall doesn't necessarily discuss diligence in pursuing the play because th you didn't apply for and you didn't appeal on the earlier because you were not notified so the key issue here is that there was no notice of an appeal so no matter how long the play was they have to make a factual ditto do they gran appeals five years later and things like they have ok one promised i mean with the case all i am aware of on premise on the fact that they were not notified of the right to appeal they have in the past and they have issued opinions explaining whether or not they thought there was reasonable notice with respect to that issue so i mean it's not uncommon to grant and in fact they do grant have a factual determination under rule five a delayed appeals and ohio appellate courts but that is goes to the procedural safeguards because they recognize that the defendant did not have a right to appeal and so no once your client was denied his appeal he appealed to the he sought leave in the state supreme court and in that application he made this argument that he had been deprived of his constitutional rights they rejected it and we or we have to take that as a rejection on the merits  appellate court should be able to hear his appeal if that was the man reasonable decision that he hadn't asserted if the decision that he had not made a constitutional it was we don't think you have a right to appeal or we think your underlying claims are invalid but i'm not sure there were no wonder lying claims that i said you're saying the the whole appeal was i didn't get my r but i think it made the late appeal there for my rights have been bottle it yes yes and so they they rejected it which means they decided it i guess what i would say that the appeal based claim distinction drawn to changi had the same factual procedural elements at issue in this claim and that's how supreme court also tonight has delayed a p r and the when it came to this court's determination they said the appeal based claim it please the court my name is jury farzana represent the warden we asked this court to form the judgment of the district court that shorter cannot claim the benefit of twenty to forty forty one d as to his delayed appeal subprime because he failed to seek the most the delayed appeal with  get around to terms with because i their argument is that descends he doesn't require due diligence standard however it must the statute does say due diligence had to have decided that issue but as to mr descends and decided under his unique facts in his case that he was diligent who where is there been a determination that this person wasn't diligent the district court decided that this person wasn't diligent that shorter wasn't diligent the district court said that specifically said that under the factual facts in the case he has not shown an eligibility under because he did not seek the motion with due diligence and that's what the magistrate judge held in the district court adopted the magistrate judges are in our and there are distinctions between designs in this case in  was not notified of anything apparently that's what the decision says he wasn't notified of any issues regarding the appeal apparently appeal was not mentioned at all here we have a factual differences where he was notified as is supreme court notification here that you're that you're referring to both he was notified that he could not appeal arish plea preceding the plea which would imply you can appeal things plea post dating the plea like the plea and after and then there was also the letter from his attorney that said if if there is an appeal you will be entitled to a transcript do you hear indigen and then they said initially you could raise on appeal is the knowing of voluntariness your plea but that's unlikely to succeed because part of your plea incorporated your co defendants disposition and you would undermine that  disposition and you could possibly cause her to testify against you a trial if you were to try to vacate your plea perfectly reasonable advice from his attorney you got a favorable deal here and you got your co t a community control probation sanction instead of three years in prison which the transcript clearly indicates the judge was going to give the defendant nothing in supreme court precedent specifies any sort of notifications that must be given the shorter essentially relies on ohio rules and to say essentially that it's a constitutional violation to not give me the notice that the ohio rules require but there's nothing in supreme court precedent that says that what this inmate was told was not sufficient to advise him and as both the state's attorney on the delayed appeal and as the trial court noted it is the inmate himself admitted he's a college educated person so he can be presumed to have taken all of the analysis that was given to him and all of the advice that was given to him and all of the statements that were given to him and say oh i can't  challenge errors that preceded the plea but i have other errors i can bring or if i brought an appeal i could challenge the voluntariness the guilty plea but i may not want to do that and in this case the evidence appears to be that he chose not to appeal because he did not want his codefendant to testify against him a trial so he apparently waited five years until her charges were resolved in her community control was over before he decided to start challenging  his guilty plea in filing the delayed appeal and as this court noted judge mentioned that we don't want inmates to be filing twenty years later under these types of circumstances i mean if there was a situation for example in ohio leaves open the option of filing your delayed appeal at any time as judge white noted in board versus bradshaw that the delayed appeal can be filed at any time and those there though there is no time limit on the delayed appeal twenty two forty four d does place a time limit on his b s petitions and we allow the state to allow for these unforseen circumstances like for example if an inmate's being transported to the institution and there's a car accident and he's in a coma analyze that their disposition was that he was his motion for leave to file a delayed appeal was overruled out of the fine where is the good cause determination that you found into the good cause determination in the sense that with the due diligence you said that the work had to have found diligence well i i don't see it as to the appeal based claim however the statute does require it so essentially you know but if that's the case that we and that's the way the court decided because right but then there's been subsequent there's what there's been subsequent to a decision from well it's actually prior to the ons and versus united states rights so  he also says specifically and according to my posing counsel descends he makes this categorical rule that no matter when you file the delayed appeal and the order comes out that you have one year from that date and the factual circumstances don't matter but even in distance see as to the sentencing based claims the court said we look at the unique factual circumstances of distance and we can't decide under his  circumstances what descends or what a reasonable person in his position might be expected to do so this court even recognize just the sentencing based claims that there is a specific factual to term goal i don't see how that helps you when they b what i'm just saying the court recognized that there's a factual analysis that must be required and that factual analysis must be required as to the appeal base claims to and here according to shorter's analysis the you know say a miranda colloquy into the appeals count if he's given all of that but he still doesn't file an appeal which twenty years fifty years ninety years in this case because he's in prison for life so he could wait ninety years and still file his delayed appeal of ninety years later and even knowing about all of his appeal rights and this court under descends he would say that's still timely  year from the deny deny all of the five a motion and that can't be what this court would intend and it's certainly not what i don't bring the united states and made a blanket rule who think it was the nature of the claim it was the nature of the claim is still five x so according to shorter every person in shorter's position who no matter what they were advised they get one year from the date of the so if you don't file a timely appeal you get one year from the date of the timely of the denial of the five day no matter what your factual circumstances are that's what he says just n z decided and that can't be the law that's not the law  on any other issue why would it be the law on this issue and it's certainly not the law in johnson and they try to make a distinction based on johnson to say that's a conviction based claim but the united states supreme court specifically says that  matter what the proceeding the fact is the result of the proceeding began at the petitioners behest and he was the moving party and no matter what you know as long as the court process in the mail doesn't go ride or stray you'll get notification of the decision same issue here and when one discovers the fact that one helped to generate whether the result of a court proceeding or other process begun it is because that's the nature of the circumstances in johnston and of twenty two forty four with the one d the courts all acknowledge that there is no basis for holding that johnson doesn't apply in this case and even dissent like i said on his claim that he didn't know or what that letter why how we interpret the letter or anything like that i mean they may put that in his pleadings in the district court he's the inmate said i didn't discover my my right to appeal until october of tw thirteen but the district court looked at the notification that was given at sentencing and the notice that was in the letter from his attorney and the fact that the inmate did nothing for five years the notification given that sentencing yeah about you don't have the right to appeal errors preceding the plea well do you want the oral statement of the judge ok and then so or and that was probably during the plea context but anyway  and looked at all of that in the fact that the inmate despite having all of that information that you can appeal this issue regarding the volunteering is like your guilty plea but you probably don't want to do that and the fact that inmate did nothing for five years the district court determined that's not an exercise of diligence perhaps if the inmate upon getting the notification from his attorney regarding the letter or something when the trial court said you don't you can't appeal they are proceeding  oh but can i peel something or rights to an attorney ask his attorney for clarification if there was some evidence that he did something the court could look at that and say ok you were exercising your rights diligently  you know in no other context we allow an inmate to just wouldn't you expect the state court to be the one that made that determination the state court arguably did make a determination i mean he filed a motion for leave to file a delayed appeal and the court overruled that motion and that is the in force min of a procedural bar and and johnson versus lee the united states supreme court just recently said federal courts have no authority to impose mandatory opinion writing standards on state courts of the price of federal respect for the procedure rules so the state court was required to do nothing more than what they did here and say that his motion for leave to file a delayed appeal was  here in appeal based claim is the mechanism by way he he brings that claim that he was not notified of his right to appeal again the notification issue is not before this court and was being time barred it was not certified the only issue is the acts when he files the five a and discoveries of guaranteed through official notice just as the same issue and johnson and as and johnson they said allowing defendants to wait until two years and slumber on their rights filing of a motion to withdraw a guilty plea in ohio so and then make a final that twenty years later you can't say that the statue of limitations doesn't start running until the inmate is denied that motion because he'll say it was error in denying that motion and so the statue of limitations should run from that day and that can't be the standard and it is not it can't be fitted with the a t p as to the merits issue on the delayed appeal context as i have noted that claim is not cognizable it's just an error in a post conviction context it's there's nothing about that process that wasn't the direct appeal it was a post conviction attempt to get a direct appeal stone versus more holds that the procedural default in that context is on the it's a procedural bar even though there is discretion the context of johnson because the petitioner in johnson knew that the piracy conviction that was used to enhance his sentence was invalid at the time that he was sentenced so that factual predicate was existence at that the three years later when he decided to file his he views petition and contrast to a notice case where a defendant says that he was not notified of an appeal when he comes into that knowledge and then files it's a different situation and i think why the made that categorical distinction and mr shorter's case he after the sentencing hearing he reached out to his attorney first so to say that he should have done more he made that first contact and see i mean we don't have that letter to see what he exactly he said but i mean he was he made that first contact and he said that the letter in response from his attorney do not tell him that he has a right to appeal and two shrew the letter and say that it did tell him it's misleading because it should tell the defend that despite the attorney's opinion about his case the defendant has independent authority to pursue his right to appeal on his opportunity presented to mr shorter and again that he that he could search his intention to file an appeal and left thinking that this was the end of the road of his case but once he found out that he did have a right to appeal he immediately filed for his delayed appeal