[Cite as State v. Houston , 2022

- Ohio

- 1660.] COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO , :

Plaintiff

- Appell ee , : No. 108156
v. :
CARDELL D. HOUSTON , :

Defendant

- Appell ant

. :

JOURNAL ENTRY AND OPINION

JUDGMENT: APPLICATION DENIED RELEASED AND JOURNALIZED: May 1 7 , 2022

Cuyahoga County Court of Common Pleas Case No. CR

- 16

- 611762

- A Application for Reopening Motion No. 553971

Appearances: Michael C. O’Malley, Cuyahoga County Prosecutor , and Gregory Ochocki, Assistant Prosecutor, for a ppellee

. G. Michael Goins , for a

ppellant

.

LISA B. FORBES , J.:

On April 8, 2022, the applicant, Cardell D. Houston (“Houston”) , pursuant to App.R. 26(B) and State v. Murnahan , 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to reopen this court’s judgment in State v. Houston, 8th Dist.Cuyahoga No. 108156, 2019

- Ohio

- 4787 . In that opinion, this court affirmed the

denial of Hous ton’s petition for postconviction relief without a hearing

. 1 Houston

now asserts that his appellate counsel should have argued (1) that his trial counsel was ineffective for not retaining a DNA expert to create a reasonable doubt whether
Houston was the shooter, and (2) that there was insufficient evidence to support the
verdict. 2 The state filed a brief in opposition on April 13, 2022

. For the following reasons, this court denies the application to reopen.

App.R. 26(B) provides in pertinent 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 counsel. * * * However, the present application seeks to reopen the appeal involving a denial of a postconviction relief petition, which is not an appeal of the judgment of conviction and sentence. In State v. Loomer, 76 Ohio St.3d 398, 667

1 In State v. Houston, Cuyahoga C.P. No. CR

- 16

- 611762

- A, the trial judge found Houston guilty of murder. The evidence, including surveillance video, showed that a man, consistent with Houston’s appearance, entered the rear of the victim’s car and shot the vict im several times. The man then exited the car, leaned into the passenger side while touching the top of the car, and shot the victim several more times. DNA testing from the top of the car showed that Houston was a major contributor to the DNA. Houston appealed his conviction in State v. Houston, 8 th Dist. Cuyahoga Nos. 106470 and 106055, 2018

- Ohio

- 3043. As noted above, H ouston subsequently sought post conviction relief, which was denied without hearing.

2 In Houston’s direct appeal of his conviction s , he raised six assignments of error, one of which was that the verdict was against the manifest weight of the evidence. Houston, 8 th Dist. Cuyahoga Nos. 106470 and 106055, 2018

- Ohio

- 3043. As noted, this court affirmed the convictions. In State v. Krzy wkowski, 8 th Dist. Cuyahoga No. 80392, 2003

- Ohio

- 3209 , this court rejected a similar argument to Houston’s

. Where appellate counsel did raise a manifest weight challenge, failure also to raise a sufficiency challenge does not violate any duty of counsel a nd does not result in prejudice to the defendant.N.E.2d 1209 (1996), the Supreme Court of Ohio noted the difference between an

appeal of a judgment of convictio n and sentence and an appeal from a motion to dismiss, ruling no basis existed under App.R. 26(B) to reopen the appeal from a
motion to dismiss . In State v. Williams, 8 th Dist. Cuyahoga No. 85893, 2007

- Ohio

998, this court held that App.R. 26(B) did not a pply to an appeal from an adverse ruling on a petition for postconviction relief.

App.R. 26(B)(1) and (2)(b) require applications claiming ineffective assistance of appellate counsel to be filed within 90 days from journalization of the
decision unless th e applicants show good cause for filing at a later time. This court decided Case No. 108156 on November 21, 2019, more than two years and four months before the filing of the application. Thus, it is untimely on its face.

In an effort to show good cause, Houston pleads that the various
shutdowns and movement restrictions associated with the COVID

- 19 pandemic prevented him from doing library research or obtaining an attorney. This argument is unpersuasive because the 90

- day limitation for filing the appli cation expired on February 19, 2020, before the pandemic restrictions took effect. Furthermore, allegations of a “dead

- bang winner” are not enough to show good cause for untimely filing. State v. Howard, 8 th Dist. Cuyahoga No. 97695, 2016

- Ohio

- 8298 , and State v. Jeffries, 8 th Dist. Cuyahoga No. 106889, 2019

- Ohio

- 4255.Accordingly, this court denies the application.

LISA B. FORBES , JUDGE

MARY J. BOYLE , P. J., and KATHLEEN ANN KEOUGH , J., CONCUR