1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0036P (6th Cir.)File Name: 00a0036p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________FREDERICKWHITE,Petitioner-Appellant,v.JAMESSCHOTTEN, Warden,Respondent-Appellee.;>1No. 97-4066Appeal from the United States District Courtfor the Northern District of Ohio at Cleveland.No. 95-02801—Patricia A. Gaughan, District Judge.Argued: June 10, 1999Decided and Filed: January 26, 2000Before: KEITH, DAUGHTREY, and MOORE, CircuitJudges._________________COUNSELARGUED:Kort W. Gatterdam, PUBLIC DEFENDER’SOFFICE, OHIO PUBLIC DEFENDER COMMISSION,Columbus, Ohio, for Appellant. Stuart W. Harris, OFFICEOF THE ATTORNEY GENERAL, CORRECTIONSLITIGATION SECTION, Columbus, Ohio, for Appellee.ON BRIEF:Kort W. Gatterdam, PUBLIC DEFENDER’S2White v. SchottenNo. 97-4066OFFICE, 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 assistanceis 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 thatNo. 97-4066White v. Schotten19cause to excuse any failure to comply with the proceduralrequirements contained in Ohio Rule of Appellate Procedure26(B). Accordingly, we remand to the district court toconsider whether the petitioner has established that he wasactually prejudiced by the alleged constitutional error and, ifso, to review his constitutional claims on their merits.18White v. SchottenNo. 97-4066However, as previously stated, we conclude that thepetitioner 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 inMaupin, which thecourt 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.CONCLUSIONWe conclude that Ohio criminal defendants have a federalconstitutional 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 constitutingNo. 97-4066White v. Schotten3determination and, if it finds that the petitioner hasestablished prejudice, to review the petitioner’s constitutionalclaims on their merits.PROCEDURAL AND FACTUAL BACKGROUNDThe convictions underlying Frederick White’s federalpetition for habeas corpus arise from the shooting death of hisformer wife, Kimberly Hawkins White, as she left work. TheOhio Court of Appeals, affirming the petitioner’s convictionsand sentence on direct appeal, stated the facts of this case asfollows:[Kimberly Hawkins] White worked as a nurse's assistantat the Mount St. Joseph Nursing Home. Atapproximately 7:00 a.m., November 5, 1988, White leftthe nursing home with Jacqueline Glenn and walkedtoward the van of Richard Gibson, a friend of Glenn's,who was to drive the women home. Glenn testified sheentered the van through the front passenger door and, asshe began to unlock the rear sliding door, Whitescreamed and pushed Glenn into the van. The womenfell onto the floor between the seats. Glenn heard aninitial shot and heard White shout, "Wait, Rick, wait."(Tr. 110). According to Glenn, this shot hit White in theleg. Glenn told the jury White's assailant entered the vanand again shot White, who stated "Oh, Rick." (Tr. 113).Glenn, who received powder burns during the shooting,testified she heard three to four shots. She also observedthe man's face as he left the van.In her statement to police immediately after the shooting,Glenn indicated she did not see the man who shot White,nor did this statement include White's identification ofher assailant. Two days later, Glenn went to the policestation to amplify her initial statement. She then toldpolice of White's references to her assailant as "Rick" anddescribed the man's clothing. Glenn subsequentlyselected the defendant's picture from an array of fivephotographs and identified him as the man who shotWhite.4White v. SchottenNo. 97-4066Richard 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 wasNo. 97-4066White v. Schotten17to entertain the claim.Seeid. In analyzing such a claim, theinquiry is a narrow one, where the petitioner must "point to aconstitutional violation that probably resulted in theconviction of one who was actually innocent."Ritchie v.Eberhart, 11 F.3d. 587, 593 (6th Cir.1993);accordSchlup v.Delo, 513 U.S. 298, 321 (1997);Murray v. Carrier, 477 U.S.478, 496 (1986). The petitioner argues that the followingevidence shows that he is actually innocent:There were two eyewitnesses to the crime. RichardGibson testified he could not identify the perpetrator.Jackie Glenn identified Mr. White but admitted she toldthe police after the incident that she did not see theassailant because she was pushed aside, out of the way,and had her head down. The State’s evidence iscontradicted by the evidence presented by White. Mr.White produced credible evidence at his trial that he wasin Columbus, Ohio at the time of his ex-wife’s murder.In addition to the alibi testimony from his wife, Mr.White introduced testimony from two disinterestedwitnesses who testified to seeing Mr. White the nightbefore and the morning of the murder in Columbus,Ohio. . . . The State of Ohio convicted Mr. White basedupon his past conduct, bad character, hearsay andprosecutorial misconduct.We conclude that the petitioner has not made a colorableshowing of actual innocence under theCarrier/Schlupstandard. As the petitioner acknowledges, this evidence waspresented to the jury, which chose to credit the state’sevidence over that offered by the petitioner. Although wemight agree with the Ohio Court of Appeals’s assessment thatthe prosecutor violated the rules of evidence in this case, thereis no basis for us to second-guess the jury’s credibilitydetermination and its resulting verdict. Accordingly, becausea miscarriage of justice will not result from the court's failureto review this claim, it does not excuse the petitioner’s failureto comply with state procedural rules.SeeRitchie, 11 F.3d at593.16White v. SchottenNo. 97-4066commensurate right to effective assistance from that counsel.However, as this court's decision inManning 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.SeeManning, 912F.2d at 882 (citingManning v. Alexander, 553 N.E.2d 264(Ohio 1990);In re: Petition of Brown, 551 N.E.2d 954(1990)). Furthermore,Murnahanemphatically holds that anysuch attack cannot be considered part of an Ohio postconviction matter.If the application for delayed reconsideration is neither partof 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,seeEvitts v. Lucey, 469 U.S. 387,396 (1985), such an individual must be accorded effectiveassistance of counsel throughoutallphases of that stage of thecriminal 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 prejudicedby 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.SeeColeman, 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 toexcuse 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 failureNo. 97-4066White v. Schotten5afraid of the defendant. Jeff indicated White had filed acomplaint against the defendant and sought a protectiveorder and divorce from him. Mabel Jean Edwards, alsoa nursing home employee, told the jury she discussedWhite's domestic problems with the defendant. Edwardsaverred she "often" saw White with black eyes andbruises on her neck. According to Edwards, White toldher the defendant once shot at her and a friend.Euclid police officer Patrick Lynch testified thedefendant's auto was found north of Columbus on thenorthbound side of Interstate I-71 at 2:14 a.m. the dayafter the shooting. The left rear tire on the vehicle wasflat. Lynch told the jury that highway patrol reports fromthe previous day did not refer to the auto. In February1989, police arrested the defendant in California andbrought him back to Cleveland for trial.The defendant denied killing his former wife and told thejury he was in Columbus at the time of the shooting. Heclaimed he spent the late afternoon of November 4, 1988with his current wife, Kimberly Fox White, until shewent to work that night. According to the defendant, heleft for Cleveland at 7:00 p.m. to visit relatives afterlearning about the death of an uncle. The defendantstated his auto had a flat tire on Interstate 71 just outsideColumbus and he walked to a nearby convenience storeto phone for assistance. Unable to secure towing services,the defendant went to a laundromat/restaurant named"Dirty Dungarees" where he met a woman, RhondaSimon. The defendant introduced himself to her as"Tony Love", a name he used as a radio disc jockey. Thewoman later drove him to his apartment where she lefther telephone number on a magazine. The magazine wasintroduced into evidence. The defendant gave Simon arecord album for bringing him home. The defendanttestified that, after Brown left, a neighbor, Andrea Bell,visited him. The defendant asked her to order a pizza forhim from her apartment since his telephone was notworking.6White v. SchottenNo. 97-4066According 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 theNo. 97-4066White v. Schotten15assistance of appellate counsel in his direct appeal, it is clearfrom other portions of his brief, the affidavit from his counselat the Ohio Public Defender’s Office, his arguments beforethe state courts, and simple logic that the reason theapplication for reopening was filed three years late was thefailure of his attorney to file that pleading in compliance withthe rule. As evidenced in the present case and as noted inParis v. Turner, No. 97-4129, 1999 WL 357815 (6th Cir.(Ohio) May 26, 1999), the public defender’s office hasrepeatedly failed to preserve the right of criminal defendantsto challenge the constitutionality of their convictions due toits disregard, whether intentional or because of inadequatefunding and staffing, of filing deadlines and proceduralbarriers.Without question, an attorney's failure or refusal to abide byestablished time deadlines in handling a client's appeal isconduct falling below the minimal standards of competencythat federal case law has imposed upon counsel to satisfyconstitutional safeguards.SeeStrickland v. Washington, 466U.S. 668, 698 (1984) (a finding of ineffective assistance ofcounsel requires first that an attorney's representation fallbelow an objective standard of reasonableness).See alsoLudwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998)(failure to perfect a direct appeal in derogation of a request todo so is aper seviolation of the Sixth Amendment, regardlessof whether the appeal would have been successful). In fact,such deficiencies have been held to constitute ineffectiveassistance of counsel per se.SeeRodriguez v. United States,395 U.S. 327, 330 (1969) ("Those whose right to appeal hasbeen frustrated should be treated exactly like any otherappellant; they should not be given an additional hurdle toclear just because their rights were violated at some earlierstage of the proceedings.").The State of Ohio argues, nevertheless, that a petitionersuch as White has no constitutional right to counsel at anystage of criminal proceedings beyond a direct appeal as ofright.SeePennsylvania v. Finley, 481 U.S. 551, 555 (1987).Without a right to counsel, the petitioner also has no14White v. SchottenNo. 97-4066cause 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)(holdingpro sestatus 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 causeexception to Rule 26(B) constitutes an independent andadequate state ground, because we conclude, uponconsideration of the fourthMaupinfactor, that the petitionerhas established cause for his failure to follow the stateprocedural rule.SeeColeman 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 ineffectiveNo. 97-4066White v. Schotten7defendant had been a minister at their church and was a"family" man. Perry described the defendant as truthful.In rebuttal, the state called Deborah Brown who sworeshe spoke with the defendant in Cleveland on theafternoon before the shooting between 3:40 p.m. and3:55 p.m. The defendant allegedly asked Brown whethershe had seen White. Patricia Laster also averred she sawthe defendant in his auto between 3:00 p.m. and 4:00p.m. on November 4, 1988. Both women testified theyhad observed defendant strike White on previousoccasions.State v. White, No. 1991 WL 8581 at *1-*3 (Ohio Ct. App.,Jan. 31, 1991),aff'd, 647 N.E.2d 787 (Ohio 1995).On May 12, 1989, a jury found White guilty of one countof aggravated murder with a firearm specification and twocounts of felonious assault with firearm specifications. OnMay 15, 1989, the trial court sentenced him to 20 years to lifefor aggravated murder, three years for the firearmsspecification, and 8-to-15 years on each count of feloniousassault, all to be served consecutively. On January 31, 1991,the Ohio Court of Appeals overruled the petitioner’sassignments of error, butsua sponteordered the trial court tovacate one of his convictions for felonious assault under theallied offenses doctrine. The court of appeals’s decision wasjournalized on February 11, 1991.Although the petitioner obtained representation from theOffice of the Ohio Public Defender in 1991, the attorneyassigned to White’s case did not file an application forreopening alleging that his appellate counsel had renderedineffective assistance in failing to raise four assignments oferror until three years later, on February 16, 1994. The courtof appeals denied White’s application for reopening, findingit to be untimely based on Ohio App. R. 26(B), whichprovides:A defendant in a criminal case may apply for reopeningof the appeal from the judgment of conviction and8White v. SchottenNo. 97-4066sentence, 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 anaffidavit 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,seeState v. White, 647 N.E.2d787 (Ohio 1995), and the United States Supreme Court deniedcertiorari.SeeWhite v. Ohio, 516 U.S. 892 (1995).White then filed a petition for writ of habeas corpus in theUnited 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 confrontationNo. 97-4066White v. Schotten13cert. denied, 120 S.Ct. 110 (1999), “[t]he alternative holdingthus does not require us to disregard the state court’s findingof procedural bar.”We turn next to the thirdMaupinfactor, which requires usto consider whether the state procedural rule is an adequateand independent state ground to foreclose federal relief. Sucha rule is adequate if it is regularly or consistently applied bythe state court,seeJohnson v. Mississippi, 486 U.S. 578, 587(1988), and is independent if it does not "depend[ ] on afederal constitutional ruling."Ake v. Oklahoma, 470 U.S. 68,75 (1985);see alsoMapes v. Coyle, 171 F.3d 408, 421 (6thCir. 1999),petition for cert. filed, 68 USLW 3116 (July 29,1999) No. 99-203) (“[T]he fact that a petitioner has notcomplied with a state procedural rule cannot bar federalreview of constitutional claims if the state rule is not ‘firmlyestablished and regularly followed.’”) (internal quotationmarks and citation omitted)).White argues that the “good cause” requirement of Ohio’sApp. R. 26(B) does not constitute an adequate andindependent state ground because it is neither firmlyestablished nor uniformly applied by the Ohio courts. Insupport of his argument, White cites to instances in whichcourts have allowed delays well after the 90-day deadline andalso argues that Rule 26(B) does not provide any clearguidelines for determining when a petitioner can file hispetition beyond the 90-day filing period.A review of the Ohio court of appeals cases attached toPetitioner’s brief reveals that the state courts have notachieved consensus on what constitutes “good cause” toexcuse non-compliance with Rule 26(B).See, e.g.,State v.McCarter, No. 62346 (Ohio App. 8 Dist., Aug. 12, 1994)(holding pro se status and ignorance of the law did notconstitute “good cause” to excuse filing of application forreopening almost three years after journalization and sevenmonths after effective date of new Rule 26(B));State v.Nitenson, No. 91 CA 796, 1994 WL 69894 (Ohio App. 4Dist., Feb. 24, 1994) (holdingpro sestatus constitutes good12White v. SchottenNo. 97-40661He argues further that his application for reopening was a nullitybecause 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 OhioSt.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 byres judicataeven if theywere not procedurally barred -- constitutes a decision on themerits and that his claims, therefore, are not procedurallybarred.1We cannot agree. As the Supreme Court hasexplained, “a state court need not fear reaching the merits ofa federal claim in analternativeholding. By its verydefinition, 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 inCoe v. Bell, 161 F.3d 320, 330 (6th Cir. 1998),No. 97-4066White v. Schotten9and cross-examination were denied when the prosecutionwas permitted to introduce hearsay evidence in the formof prior statements made by the decedent; and (4)petitioner’s Sixth and Fourteenth amendment rights toeffective assistance of appellate counsel were deniedwhen: [a] appellate counsel failed to raise an issue onappeal that but for counsel’s failure there is a reasonableprobability that the result of the appeal would have beendifferent and, [b] Ohio provides no remedy forvindication of a denial of the defendant’s right to theeffective assistance of counsel.The case was referred to a magistrate judge, who issued areport and recommended that the petition be dismissedbecause the claims were procedurally defaulted under OhioApp. Rule 26(B) and because the petitioner was unable toshow cause and prejudice for the default. Over the petitioner’sobjections, the district court adopted the magistrate judge’sreport and recommendation and dismissed the petition basedon procedural default. This appeal followed.ANALYSISWhite appeals the district court’s dismissal of his habeascorpus petition on the basis of procedural default. Inconsidering a district court’s disposition of a habeas petition,we review the district court’s legal conclusionde novo, and itsfactual findings for clear error.SeeCarpenter v. Mohr, 163F.3d 938, 942-43 (6th Cir. 1998),cert. granted, 120 S.Ct. 444(1999).UnderMaupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986),this circuit utilizes the following four-part analysis when thestate argues that a federal habeas claim has been procedurallydefaulted in state court: (1) whether there is a procedural rulethat is applicable to the petitioner's claim and whether thepetitioner failed to follow this rule; (2) whether the statecourts actually enforced the state procedural rule; (3) whetherthe state procedural rule is an adequate and independent stateground to foreclose federal relief; and if so (4) whether the10White v. SchottenNo. 97-4066petitioner 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 factorsof theMaupintest 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 thefourMaupinfactors in turn, addressing petitioner’s argumentsin the process.The firstMaupinfactor requires us to consider whetherthere 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,seeState 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 andwould 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. 97-4066White v. Schotten11until February 16, 1994, more than three years afterjournalization of the appellate judgment, one year and elevenmonths after the announcement ofState v. Murnahan(1992),63 Ohio St. 3d 60, and more than seven months after theeffective date of App. R. 26(B). On its face, the applicationfor reopening is untimely.”State of Ohio v. Frederick White,No. 57944 slip op. at 1-2 (Ohio Ct. App., Oct. 19, 1994). Wethus conclude that there was an applicable rule in place andthat White failed to follow it.Turning to the secondMaupinfactor, we must considerwhether the state courts actually enforced the state proceduralrule. The Ohio Court of Appeals held that it was compelledto deny the petitioner’s application for reopening because itwas untimely under Rule 26(B) and no good cause existed toexcuse that untimeliness. The court also said:Notwithstanding the fact that the application forreopening is untimely, a substantive review of theapplicant’s supporting memorandum clearlydemonstrates thatres judicataprevents the reopening ofthe appellate judgment that was rendered inState v.White(Jan. 31, 1991), Cuyahoga App. No. 57944,unreported. The doctrine ofres judicataprohibits adefendant from relitigating any defense or claim of errorthat has been previously raised on direct appeal.State v.Perry, 10 Ohio St. 2d 175 (Ohio 1967). . . . In an attemptto reopen the appellate judgment that was rendered bythis Court, the applicant raises four proposedassignments of error which appellate counsel allegedlyfailed to argue upon appeal. These four proposedassignments of error address the following issues: (1)other acts testimony (Evid. R. 404); (2) hearsay evidence(Evid. R. 801); (3) extensive evidence to impeachdefendant’s character (Evid. R. 608); and (4)prosecutorial misconduct. This court, however, haspreviously examined upon direct appeal each of theapplicant’s four proposed assignments of error. Throughthe fourth, fifth, and sixth assignments of error as raisedon direct appeal, this Court reviewed the issues of other