[Cite as State v. Huber, 2011-Ohio-3240.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 93923

STATE OF OHIO 

APPELLANT 

vs. 

JOSEPH HUBER 

APPELLEE 

JUDGMENT: 

APPLICATION DENIED 

Cuyahoga County Court of Common Pleas 

Case No. CR-521813 

Motion No. 445331 

RELEASED DATE: June 27, 2011 
FOR APPELLANT 

Joseph Huber, Pro Se 

Inmate No. A574800 

Trumbull Correctional Institution 

P. O. Box 901 

Leavittsburg, OH 44430 

ATTORNEY FOR APPELLEE 

William D. Mason 

Cuyahoga County Prosecutor 

By: Daniel T. Van 

Assistant County Prosecutor 

8th Floor Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 

KATHLEEN ANN KEOUGH, J.: 

{¶ 1} Joseph Huber has filed an application for reopening pursuant to 

App.R. 26(B). Huber is attempting to reopen the appellate judgment, as 

rendered in State v. Huber, Cuyahoga App. No. 93923, 2011-Ohio-62, which 

affirmed his conviction for two counts of aggravated robbery, one count of 

kidnapping, and one count of attempted felonious assault, but remanded for 

resentencing. We decline to reopen Huber’s appeal. 

{¶ 2} App.R. 26(B)(2)(b) requires that Huber establish “a showing of 

good cause for untimely filing if the application is filed more than 90 days 
after journalization of the appellate judgment,” which is subject to reopening. 

 The Supreme Court of Ohio, with regard to the 90-day deadline as provided 

by App.R. 26(B)(2)(b), has firmly established that: 

{¶ 3} “We now reject [applicant’s] claim that those excuses gave him 

good cause to miss the 90-day deadline in App.R. 26(B). The rule was 

amended to include the 90-day deadline more than seven months before 

[applicant’s] appeal of right was decided by the court of appeals in February 

1994, so the rule was firmly established then, just as it is today. Consistent 

enforcement of the rule’s deadline by the appellate courts in Ohio 

protects on the one hand the state’s legitimate interest in the finality 

of its judgments and ensures on the other hand that any claims of 

ineffective assistance of appellate counsel are promptly examined 

and resolved. 

{¶ 4} “Ohio and other states ‘may erect reasonable procedural 

requirements for triggering the right to an adjudication,’ Logan v. 

Zimmerman Brush Co. (1982), 455 U.S. 422, 437, 102 S.Ct. 1148, 71 

L.Ed. 2d 265, and that is what Ohio has done by creating a 90-day 

deadline for the filing of applications to reopen. [Applicant] could have 

retained new attorneys after the court of appeals issued its decision in 1994, 

or he could have filed the application on his own. What he could not do was 

ignore the rule’s filing deadline. * * * The 90-day requirement in the 
rule is ‘applicable to all appellants,’ State v. Winstead (1996), 74 Ohio 

St.3d 277, 278, 658 N.E.2d 722, and Gumm offers no sound reason why 

he – unlike so many other Ohio criminal defendants – could not 

comply with that fundamental aspect of the rule.” (Emphasis added.) 

State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, at ¶7. 

See, also, State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d 

970; State v. Cooey, 73 Ohio St.3d 411, 1995-Ohio-328, 653 N.E.2d 252; State 

v. Reddick, 72 Ohio St.3d 88, 1995-Ohio-249, 647 N.E.2d 784. 

{¶ 5} Herein, Huber is attempting to reopen the appellate judgment 

that was journalized on January 13, 2011. The application for reopening was 

not filed until June 14, 2011, more than 90 days after journalization of the 

appellate judgement in State v. Huber, supra. Huber, in an attempt to show 

“good cause” for the untimely filing of his application for reopening, argues 

“because all of the Appellant’s proper legal documentations are in Trumbull 

prison and he is currently in Cuyahoga County Jail pending resentencing and 

was not informed immediately of [the] decision.” 

{¶ 6} Lack of knowledge or ignorance of the time constraint, applicable 

to an application for reopening per App.R. 26(B), does not provide sufficient 

cause for untimely filing. State v. Klein (Mar. 28, 1991), Cuyahoga App. No. 

58389, reopening disallowed (Mar. 15, 1994), Motion No. 249260, affirmed 

(1994), 69 Ohio St.3d 1481; State v. Trammell (July 13, 1995), Cuyahoga App. 
No. 67834, reopening disallowed (Apr. 22, 1996), Motion No. 270493; State v. 

Travis (Apr. 5, 1990), Cuyahoga App. No. 56825, reopening disallowed (Nov. 

2, 1994), Motion No. 251073, affirmed (1995), 72 Ohio St.3d 317. See, also, 

State v. Torres, Cuyahoga App. No. 86530, 2007-Ohio-3696, reopening 

disallowed (Jan. 3, 2007), Motion No, 390254; State v. Gaston (Feb. 7. 2002), 

Cuyahoga App. No. 79626, reopening disallowed (Jan 17,2007), Motion No. 

391555. In addition, reliance upon appellate counsel does not establish good 

cause for untimely filing an application for reopening. State v. White (Jan. 

31, 1991), Cuyahoga App. No. 57944, reopening disallowed (Oct. 19, 1994), 

Motion No. 249174; State v. Allen (Nov. 3, 1994), Cuyahoga App. No. 65806, 

reopening disallowed (July 8, 1996), Motion No. 267054. See, also, State v. 

Moss (May 13, 1993), Cuyahoga App. Nos. 62318 and 62322, reopening 

disallowed (Jan. 16, 1997), Motion No. 275838; State v. McClain (Aug. 3, 

1995), Cuyahoga App. No. 67785, reopening disallowed (Apr. 15, 1997), 

Motion No. 276811; State v. Russell (May 9, 1996), Cuyahoga App. No. 69311, 

reopening disallowed (June 16, 1997), Motion No. 282351. Finally, difficulty 

in obtaining a transcript or limited access to legal materials does not 

establish good cause for the untimely filing of an application for reopening. 

State v. Houston, 73 Ohio St.3d 346, 1995-Ohio-317, 652 N.E.2d 1018; State v. 

Lawson, Cuyahoga App. No. 84402, 2005-Ohio-880, reopening disallowed 

2006-Ohio-3939, Motion No. 374913; State v. Alexander, Cuyahoga App. No. 
81529, 2004-Ohio-3861, reopening disallowed 2004-Ohio-3861, Motion No. 

353061; and State v. Sanchez (June 9. 1994), Cuyahoga App. No. 62796, reopening 

disallowed (Aug. 16, 2001), Motion No. 23717. Herein, Huber has failed to establish 

“a showing of good cause” for the untimely filing of his application for 

reopening, as premised upon a lack of knowledge, reliance upon his attorney, 

difficultly in 

{¶ 7} obtaining a transcript, and limited access to legal materials. 

{¶ 8} Accordingly, the application for reopening is denied. 

KATHLEEN ANN KEOUGH, JUDGE 

PATRICIA ANN BLACKMON, P.J., and 

MARY J. BOYLE, J., CONCUR