1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

FREDERICK WHITE,

Petitioner-Appellant,

v.

JAMES SCHOTTEN, Warden,

Respondent-Appellee.

Appeal from the United St

for the Northern District of 

No. 95-02801—Patricia A. Ga

Argued: June 1

Decided and Filed: Jan

Before: KEITH, DAUGHTREY

Judges.

____________

COUNSE

ARGUED: Kort W. Gatterdam, OFFICE, OHIO PUBLIC DEFEColumbus, Ohio, for Appellant. SOF THE ATTORNEY GENELITIGATION SECTION, ColumON BRIEF: Kort W. Gatterdam
2 White v. Schotten No. 97-4066

OFFICE, OHIO PUBLIC DEFENDER COMMISSION,Columbus, Ohio, for Appellant. Stuart W. Harris, OFFICEOF THE ATTORNEY GENERAL, CORRECTIONSLITIGATION SECTION, Columbus, Ohio, for Appellee.

_________________

OPINION

_________________

MARTHA CRAIG DAUGHTREY, Circuit Judge.

Petitioner Frederick White appeals the district court’sdismissal of his habeas corpus petition, filed pursuant to 28U.S.C. § 2254. In the petition, White challenges his 1989state convictions for aggravated murder with a firearmspecification, felonious assault with a firearm specification,and possession of a weapon under disability, alleging that hisappellate counsel rendered constitutionally ineffectiveassistance. The district court dismissed the petition on theground of procedural default, finding that the petitioner hadfailed to raise the issue of ineffective assistance of counselwithin the time limit set by Ohio App. R. 26(B). The districtcourt further found that White was unable to show cause andprejudice for the default. 

Under applicable Ohio law, a claim of ineffective assistance

is raised by application to reopen the direct appeal. Rule26(B) provides that the application must be filed within 90days “from journalization of the appellate judgment.” In thiscase, the petitioner’s attorney filed the application some threeyears after the 90-day period had run. Because an applicationfor reopening the direct appeal in Ohio is part of the directappeal process, and because a defendant has a right toeffective assistance of counsel during that stage ofproceedings, we conclude that the petitioner in this case isable to show cause for his procedural default, i.e., counsel’sfailure to file a timely application for reopening. However,the issue of whether the petitioner was prejudiced by thealleged constitutional error was not addressed by the districtcourt and is not adequately briefed before us. Hence, we mustremand the case to the district court to make that

No. 97-4066 cause to excuse any failure to corequirements contained in Ohio Ru26(B). Accordingly, we remand consider whether the petitioner haactually prejudiced by the alleged so, to review his constitutional cla
18 White v. Schotten No. 97-4066

However, as previously stated, we conclude that the

petitioner has shown cause for his default, and if he is able todemonstrate that he was actually prejudiced by the allegedconstitutional error, he is entitled to federal review of themerits of his constitutional claims. Because the issue ofprejudice is not adequately briefed, we remand for the districtcourt to consider the issue, keeping in mind the followingguidelines for such analysis articulated in Maupin, which the

court gleaned from various Supreme Court cases: (1) “theprejudice that must be shown must be a result of the allegedconstitutional violation and not a result of the trial counsel’sfailure to meet state procedural guidelines;” (2) “the burdenis on the petitioner to show that he was [actually] prejudicedby the alleged constitutional error..., not merely a possibilityof prejudice;” and (3) “in analyzing a petitioner’s contentionof prejudice, the court should assume that the petitioner hasstated a meritorious constitutional claim.” 

785 F.2d at 139

(citations omitted). Of course, if the district court finds thatthe petitioner has established prejudice, it should proceed todecide the merits of his constitutional claims.

Finally, we note the petitioner’s argument that Rule 26(B)

is unconstitutional as applied in Ohio because it deprivesindigent, incarcerated, uncounseled inmates due process andequal protection of the laws. These claims were not raised inthe district court, however. “When a party fails to present anargument to the district court, we have discretion to resolvethe issue only where the proper resolution is beyond anydoubt, or where injustice might otherwise result.” SeeEnertech Elec., Inc. v. Mahoning County Comm’r, 85 F.3d257, 261 (6th Cir. 1996). We decline, in this instance, to treatthese issues as a matter of initial review.

CONCLUSION

We conclude that Ohio criminal defendants have a federal

constitutional right to effective assistance of counsel duringan application for reopening and that the petitioner’s counselin this case was constitutionally ineffective in failing to filesuch an application in a timely fashion, thus constituting

No. 97-4066 determination and, if it finds established prejudice, to review the claims on their merits.

PROCEDURAL AND FACTU

The convictions underlying F

petition for habeas corpus arise froformer wife, Kimberly Hawkins WOhio Court of Appeals, affirming tand sentence on direct appeal, statfollows:

[Kimberly Hawkins] White worat the Mount St. Joseph approximately 7:00 a.m., Novemthe nursing home with Jacquetoward the van of Richard Gibswho was to drive the women hoentered the van through the fronshe began to unlock the reascreamed and pushed Glenn intfell onto the floor between the initial shot and heard White sh(Tr. 110). According to Glenn, tleg. Glenn told the jury White's and again shot White, who stateGlenn, who received powder butestified she heard three to four sthe man's face as he left the vanIn her statement to police immedGlenn indicated she did not see tnor did this statement include Wher assailant. Two days later, Gstation to amplify her initial stpolice of White's references to hedescribed the man's clothing. selected the defendant's picture photographs and identified him White.
4 White v. Schotten No. 97-4066

Richard Gibson, the driver of the van, corroboratedGlenn's testimony but was unable to identify theassailant. Gibson told the jury that, as White laywounded in the van, she stated her husband fired theshots. Euclid police officer Jeffrey Swider responded tothe nursing home minutes after the shooting. Swidertestified he asked White who shot her and Whiteresponded, "My husband." (Tr. 180). Sister MaryRaphael, a nun at the nursing home, also heard Whiteidentify her husband as the assailant. White later died inthe hospital.Cuyahoga County Coroner Elizabeth Balraj performed anautopsy on White's body. Her examination revealed agunshot wound to the left leg as well as an abdominalwound with a perforation of the aorta. Balraj opinedWhite hemorrhaged to death. Barbara Campbell, amember of the coroner's trace evidence department,testified that gun shot residue on White's palms indicatedthe weapon was fired in close proximity to White.Kathy Kozel, an assistant at Mount St. Joseph, testifiedthat, as she arrived for work, she observed a manstanding outside the nursing home approximately tenminutes before the shooting. Kozel stated she was 12-13feet from the man and that she looked at his face. Kozeldid not see the man fire a gun. Three months later, Kozelselected the defendant's photo from an array as the manshe saw outside the nursing home.Charon Hawkins, the victim's daughter, testified thedefendant telephoned her mother the evening before shewas killed. According to Hawkins, her mother twicerefused to speak with the defendant, who finallythreatened "to do something bad" to her mother. (Tr.235). The daughter also averred the defendant beat hermother many times.Vivian Faylor Jeff, a counselor at the Cuyahoga CountyWitness & Family Violence Center, testified she metwith White on six to eight occasions and that White was

No. 97-4066 to entertain the claim. See id. In ainquiry is a narrow one, where the constitutional violation that prconviction of one who was actuEberhart, 11 F.3d. 587, 593 (6th CDelo, 513 U.S. 298, 321 (1997); M478, 496 (1986). The petitioner evidence shows that he is actually 

There were two eyewitnesses Gibson testified he could not iJackie Glenn identified Mr. Whthe police after the incident thassailant because she was pusheand had her head down. Thcontradicted by the evidence prWhite produced credible evidenin Columbus, Ohio at the time oIn addition to the alibi testimoWhite introduced testimony fwitnesses who testified to seeinbefore and the morning of the Ohio. . . . The State of Ohio conupon his past conduct, bad prosecutorial misconduct.We conclude that the petitioner 

showing of actual innocence ustandard. As the petitioner acknowpresented to the jury, which chevidence over that offered by the might agree with the Ohio Court of the prosecutor violated the rules of is no basis for us to second-gudetermination and its resulting verda miscarriage of justice will not resto review this claim, it does not excto comply with state procedural rul

593. 
16 White v. Schotten No. 97-4066

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. 1990), made clear, Ohio law doesnot consider an attack on the adequacy of appellate counsel tobe proper in a state habeas proceeding. See Manning, 912F.2d at 882 (citing Manning v. Alexander, 553 N.E.2d 264(Ohio 1990); In re: Petition of Brown, 551 N.E.2d 954

(1990)). Furthermore, Murnahan emphatically holds that anysuch attack cannot be considered part of an Ohio postconviction matter. 

If the application for delayed reconsideration is neither part

of a state habeas nor state post-conviction proceeding, it mustbe a continuation of activities related to the direct appealitself. Because a defendant is entitled to effective assistanceof counsel on direct appeal, see Evitts v. Lucey, 469 U.S. 387,396 (1985), such an individual must be accorded effectiveassistance of counsel throughout all phases of that stage of the

criminal proceedings. The failure of the Ohio PublicDefender to offer such constitutionally-mandated counselexcuses the failure of the petitioner to abide by the timingrequirements of applicable procedural rules. 

Therefore, upon establishing that he was actually prejudiced

by any ineffective representation, the petitioner is entitled topresent to a federal court for merit review those claims thatshould have been brought to the attention of the Ohio statecourts throughout the course of the petitioner's legal battles.See Coleman, 501 U.S. at 750. Having found no cause forWhite’s default, neither the magistrate judge nor the districtjudge addressed the prejudice prong. Accordingly, unlessthere is another basis upon which to excuse the petitioner’sprocedural default, we must remand to the district court todecide whether the petitioner can establish prejudice. 

White claims that there is such an alternative basis to

excuse his procedural default, arguing that even if this courtfinds that he has not shown cause and prejudice, theprocedural default should nonetheless be excused because afundamental miscarriage of justice would result from a failure

No. 97-4066 

afraid of the defendant. Jeff indcomplaint against the defendant order and divorce from him. Ma nursing home employee, told White's domestic problems with averred she "often" saw Whitbruises on her neck. According her the defendant once shot at hEuclid police officer Patrick defendant's auto was found nornorthbound side of Interstate I-after the shooting. The left rear flat. Lynch told the jury that highthe previous day did not refer t1989, police arrested the defenbrought him back to Cleveland The defendant denied killing his jury he was in Columbus at the tclaimed he spent the late afternowith his current wife, Kimberlwent to work that night. Accordleft for Cleveland at 7:00 p.mlearning about the death of an stated his auto had a flat tire on IColumbus and he walked to a nto phone for assistance. Unable to the defendant went to a laundr"Dirty Dungarees" where he mSimon. The defendant introdu"Tony Love", a name he used as woman later drove him to his aher telephone number on a magaintroduced into evidence. The drecord album for bringing him testified that, after Brown left, a visited him. The defendant askehim from her apartment since working.
6 White v. Schotten No. 97-4066

According to the defendant, he and his wife later tried toretrieve his auto but the battery was dead. They spent therest of the evening watching videotaped movies. Thedefendant told the jury he awoke the morning of theslaying at 8:15 and went on errands with his wife. Heclaimed that, as he left the apartment complex onerrands, he spoke with Bell about the pizza not arrivingthe previous night. Later that day the defendant learnedhis former wife had been killed. He acknowledged heleft for California after police visited his mother inCleveland. The defendant stated the police told hismother they would shoot him.Rhonda Simon corroborated the defendant's testimony asto meeting "Tony Love" at 8:00 p.m. on November 4,1988 at "Dirty Dungarees." She verified that he told herof his flat tire and that she drove him to his apartmentwhere she left her phone number on a magazine. Simonaverred she arrived at her house at approximately 10:00p.m. Andrea Bell also agreed she visited the defendantat his apartment "on a Friday evening in early November"and learned of his flat tire. According to Bell, she spokewith the defendant the next morning between 8:30 and9:00 as he left the apartment complex with his wife in herauto. Kimberly Fox White corroborated the defendant'stestimony and claimed he was with her in the earlymorning hours of November 5, 1988.Private investigator John Younkin told the jury that thedistance from defendant's auto on Interstate 71 to thenursing home where White was shot equaled 139.3miles. According to Younkin, it requires two hours andnineteen minutes to drive this distance at the postedspeed limits.The defendant offered two character witnesses on hisbehalf. Glenn Frazier, a pastor at the Gospel PalaceChurch and manager of a radio station where defendanthosted an inspirational program, testified to thedefendant's honesty. Bishop F.E. Perry stated the

No. 97-4066 assistance of appellate counsel in hfrom other portions of his brief, the at the Ohio Public Defender’s Ofthe state courts, and simple loapplication for reopening was filefailure of his attorney to file that plthe rule. As evidenced in the preParis v. Turner, No. 97-4129, 19(Ohio) May 26, 1999), the pubrepeatedly failed to preserve the rito challenge the constitutionality oits disregard, whether intentional funding and staffing, of filing dbarriers.

Without question, an attorney's f

established time deadlines in hanconduct falling below the minimathat federal case law has imposeconstitutional safeguards. See StriU.S. 668, 698 (1984) (a finding ocounsel requires first that an attobelow an objective standard of rLudwig v. United States, 162 F.3d (failure to perfect a direct appeal in do so is a per se violation of the Sixof whether the appeal would have such deficiencies have been held assistance of counsel per se. See R395 U.S. 327, 330 (1969) ("Those been frustrated should be treateappellant; they should not be giveclear just because their rights werstage of the proceedings."). 

The State of Ohio argues, neve

such as White has no constitutionstage of criminal proceedings beyright. See Pennsylvania v. Finley, 

Without a right to counsel, the 
14 White v. Schotten No. 97-4066

cause to excuse filing of an application for reopening over oneyear after journalization of appellate judgment); State v.Klein, No. 49260 (Ohio App. 8 Dist., March 15, 1994)(holding pro se status and ignorance of law did not constitute“good cause” to excuse filing of application for reopeningfive months after journalization and two months aftereffective date of new Rule 26(B)); State v. Wright, No. 93 CA2110, 1994 WL 398805 (Ohio App. 4 Dist., July 29, 1994)(holding state’s failure to respond to an application forreopening constitutes “good cause”); State v. Fields, No. 95CA-08-048 (Ohio App. 5 Dist., April 21, 1994) (same); Statev. Wright, No. 93 CA 2110, 1994 WL 398805 (Ohio App. 4Dist., July 29, 1994) (same). Nonetheless, we recognize thatthe rule is relatively new and acknowledge that it may takesome time for the Ohio courts to achieve consensus.

In any event, we need not focus on whether the good cause

exception to Rule 26(B) constitutes an independent andadequate state ground, because we conclude, uponconsideration of the fourth Maupin factor, that the petitionerhas established cause for his failure to follow the stateprocedural rule. See Coleman v. Thompson, 501 U.S. 722,750 (1991) (“In all cases in which a state prisoner hasdefaulted his federal claims in state court pursuant to anindependent and adequate state procedural rule, federalhabeas review of the claims is barred unless the prisoner candemonstrate cause for the default and actual prejudice as aresult of the alleged violation of federal law, or demonstratethat failure to consider the claims will result in a fundamentalmiscarriage of justice.”) The district court, through theadoption of the magistrate judge’s report andrecommendation, held that ineffective assistance of appellatecounsel did not serve as cause because”[c]ounsel’s failure tofile a timely application for reopening because he had a heavycase load does not constitute an objective factor external tothe defense.” We disagree. The external cause for thepetitioner’s non-compliance with Rule 26(B) is provided bythe continued deficiencies in the office of the Ohio PublicDefender. Although the petitioner states in his appellate briefthat the cause for his procedural default was ineffective

No. 97-4066 

defendant had been a minister a"family" man. Perry described tIn rebuttal, the state called Debshe spoke with the defendanafternoon before the shooting 3:55 p.m. The defendant allegedshe had seen White. Patricia Lasthe defendant in his auto betwp.m. on November 4, 1988. Bohad observed defendant strikoccasions.

State v. White, No. 1991 WL 858Jan. 31, 1991), aff'd, 647 N.E.2d 7

On May 12, 1989, a jury found 

of aggravated murder with a fireacounts of felonious assault with fMay 15, 1989, the trial court sentenfor aggravated murder, three specification, and 8-to-15 years oassault, all to be served consecutivthe Ohio Court of Appeals oassignments of error, but sua spon

vacate one of his convictions for fallied offenses doctrine. The court journalized on February 11, 1991. 

Although the petitioner obtaine

Office of the Ohio Public Defenassigned to White’s case did noreopening alleging that his appellineffective assistance in failing to error until three years later, on Febof appeals denied White’s applicatit to be untimely based on Ohiprovides: 

A defendant in a criminal case mof the appeal from the judgm
8 White v. Schotten No. 97-4066

sentence, based on a claim of ineffective assistance ofappellate counsel. An application for reopening shall befiled in the court of appeals where the appeal wasdecided within ninety days from journalization of theappellate judgment unless the application shows goodcause for filing at a later time. The petitioner attached to his application for reopening an

affidavit from his attorney stating that he had been assignedWhite’s case in 1991 but had been unable to review the meritsof the case until late 1993, as a result of his office’s“overwhelming caseload” and his own “personal heavycaseload.” White’s counsel argued that his heavy caseloadserved as “good cause,” as that phrase is used in Rule 26(B),to excuse his tardiness. The Ohio Court of Appeals rejectedthat argument, stating that “an applicant’s ignorance of App.R. 26(B) or its procedural requirements will not establishgood cause for the untimely filing of an application forreopening,” and that “an ‘office’s overwhelming caseload andmy personal heavy caseload’ does not establish good causefor the untimely filing of an application for reopening asbrought pursuant to App. R. 26(B).” The Ohio SupremeCourt affirmed that decision, see State v. White, 647 N.E.2d

787 (Ohio 1995), and the United States Supreme Court deniedcertiorari. See White v. Ohio, 516 U.S. 892 (1995).

White then filed a petition for writ of habeas corpus in the

United States District Court for the Northern District of Ohio,raising the following claims: 

(1) violation of petitioner’s rights to due process and afair trial as guaranteed by the Fifth, Sixth, and FourteenthAmendments to the United States Constitution on thegrounds of prosecutorial misconduct; (2) petitioner’sFifth and Fourteenth Amendment rights against selfincrimination, to due process and a fair trial were deniedwhen the trial court repeatedly allowed introduction ofother acts evidence and extrinsic evidence of petitioner’scharacter to be presented to the jury; (3) petitioner’sSixth and Fourteenth Amendment rights to confrontation

No. 97-4066 cert. denied, 120 S.Ct. 110 (1999)thus does not require us to disregaof procedural bar.” 

We turn next to the third Maupin 

to consider whether the state procand independent state ground to fora rule is adequate if it is regularly the state court, see Johnson v. Miss(1988), and is independent if it federal constitutional ruling." Ake 75 (1985); see also Mapes v. CoyCir. 1999), petition for cert. filed, 1999) No. 99-203) (“[T]he fact complied with a state procedurareview of constitutional claims if testablished and regularly followmarks and citation omitted)). 

White argues that the “good cau

App. R. 26(B) does not consindependent state ground becauestablished nor uniformly applied support of his argument, White ccourts have allowed delays well aftalso argues that Rule 26(B) doeguidelines for determining when petition beyond the 90-day filing p

A review of the Ohio court of 

Petitioner’s brief reveals that thachieved consensus on what conexcuse non-compliance with Rule McCarter, No. 62346 (Ohio App(holding pro se status and ignorconstitute “good cause” to excusreopening almost three years after months after effective date of nNitenson, No. 91 CA 796, 1994 Dist., Feb. 24, 1994) (holding pro 
12 White v. Schotten No. 97-4066

1He argues further that his application for reopening was a nullity

because the court held that it had already decided his claims on directappeal. A review of petitioner’s direct appeal brief and the appealscourt’s resolution reveals that the court had indeed decided the merits ofpetitioner’s claims regarding the admission of other acts testimony,hearsay evidence, and extensive evidence to impeach his credibility, butthose claims had only been framed and ruled upon as violations of statelaw. The import of the claim raised in the application for reopening wasthat White’s appellate counsel rendered ineffective assistance in failingto raise those claims as violations of federal law. Indeed, the petitionerdoes not contend that he raised those claims as violations of federal lawin his direct appeal, but instead that this court should deem it so based onthe court of appeals’s language in denying the application for reopening.

acts testimony, hearsay evidence, and extrinsic evidenceto impeach defendant’s character. In addition, this courtaddressed the issue of prosecutorial misconduct in lightof the harmless error rule (Crim. R. 52(A)) and held that:“Although the prosecutor repeatedly violated the rules ofevidence in this case, we are compelled to find theseerrors harmless in light of the overwhelming evidence ofthe defendant’s guilt. State v. Abrams (1974), 39 Ohio

St.2d 53; Chapman v. California (1967), 386 U.S.18. . . . ” 

Id. at 4-5. 

White argues that the appeals court’s alternative holding –

that his claims would be barred by res judicata even if they

were not procedurally barred -- constitutes a decision on themerits and that his claims, therefore, are not procedurallybarred.1 We cannot agree. As the Supreme Court has

explained, “a state court need not fear reaching the merits ofa federal claim in an alternative holding. By its very

definition, the adequate and independent state ground doctrinerequires the federal court to honor a state holding that is asufficient basis for the state court’s judgment, even when thestate court also relies on federal law.” Harris v. Reed, 489U.S. 255, 264 n.10 (1989) (emphasis in original); accordSochor v. Florida, 504 U.S. 527, 533 (1992). As weconcluded in Coe v. Bell, 161 F.3d 320, 330 (6th Cir. 1998),

No. 97-4066 

and cross-examination were deniwas permitted to introduce hearsof prior statements made by petitioner’s Sixth and Fourteeneffective assistance of appellatwhen: [a] appellate counsel faiappeal that but for counsel’s failprobability that the result of the different and, [b] Ohio provindication of a denial of the deffective assistance of counsel.The case was referred to a magi

report and recommended that thbecause the claims were procedurApp. Rule 26(B) and because the show cause and prejudice for the deobjections, the district court adopreport and recommendation and dion procedural default. This appeal 

ANALYSI

White appeals the district court

corpus petition on the basis of considering a district court’s dispowe review the district court’s legal 

factual findings for clear error. Se

F.3d 938, 942-43 (6th Cir. 1998), c(1999). 

Under Maupin v. Smith, 785 F.2

this circuit utilizes the following fstate argues that a federal habeas cldefaulted in state court: (1) whethethat is applicable to the petitionepetitioner failed to follow this rucourts actually enforced the state pthe state procedural rule is an adeqground to foreclose federal relief; 
10 White v. Schotten No. 97-4066

petitioner has established cause for his failure to follow therule and prejudice by the alleged constitutional error. 

The petitioner contends that none of the first three factors

of the Maupin test have been met. He also argues, in thealternative, that even if those three factors have been satisfied,he is able to show cause and prejudice for his default underthe fourth factor, thereby entitling him to federal court reviewof the merits of his habeas corpus claims. He also argues thatthe court may excuse his procedural default because failure toaddress the merits of his constitutional claims will result in afundamental miscarriage of justice. We consider each of thefour Maupin factors in turn, addressing petitioner’s argumentsin the process.

The first Maupin factor requires us to consider whether

there is a procedural rule that is applicable to the petitioner'sclaim and whether he failed to follow that rule. The petitionerargues that there was no procedural rule applicable to hisclaim because Ohio’s App. R. 26(B) was not in effect at thetime his direct appeal was decided on January 31, 1991, andhe filed an application to reopen his appeal as soon as theclaim of appellate ineffectiveness was discovered. We findthis argument unmeritorious. Although White is correct thatprior to July 1, 1993, Rule 26 did not contain a distinctprovision for ineffective assistance of counsel claims, it didset forth a ten-day time limit for the "application forreconsideration of any cause or motion submitted on appeal."Following the Ohio Supreme Court's recommendation that thelegislature adopt an amendment to better serve defendantswho allege ineffective assistance of appellate counsel, see

State v. Murnahan, 584 N.E.2d 1204 (Ohio 1992), Rule 26(B)was enacted to provide a 90-day limit for ineffectiveassistance of appellate counsel claims.

Rule 26(B) is clearly applicable to the petitioner's claim and

would have required White to file his motion to reopen within90 days of its effective date, July 1, 1993. However, as theOhio Court of Appeals noted in denying White’s motion toreopen, “[t]he application for reopening ... was not filed ...

No. 97-4066 until February 16, 1994, more journalization of the appellate judgmonths after the announcement of 63 Ohio St. 3d 60, and more thaeffective date of App. R. 26(B). Ofor reopening is untimely.” State oNo. 57944 slip op. at 1-2 (Ohio Ct. thus conclude that there was an apthat White failed to follow it. 

Turning to the second Maupin 

whether the state courts actually enrule. The Ohio Court of Appeals to deny the petitioner’s applicatiowas untimely under Rule 26(B) anexcuse that untimeliness. The cou

Notwithstanding the fact thareopening is untimely, a subapplicant’s supporting mdemonstrates that res judicata pthe appellate judgment that wWhite (Jan. 31, 1991), Cuyahunreported. The doctrine of rdefendant from relitigating any dthat has been previously raised oPerry, 10 Ohio St. 2d 175 (Ohio to reopen the appellate judgmethis Court, the applicant assignments of error which appfailed to argue upon appeal. assignments of error address thother acts testimony (Evid. R. 40(Evid. R. 801); (3) extensive defendant’s character (Evid. prosecutorial misconduct. Thpreviously examined upon dirapplicant’s four proposed assignthe fourth, fifth, and sixth assignon direct appeal, this Court revi