                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0106n.06
                           Filed: February 8, 2007

                                            No. 05-3275

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


JEFFREY GRANGER,                                  )
                                                  )
       Petitioner-Appellant,                      )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
ROBERT HURT, WARDEN,                              )    SOUTHERN DISTRICT OF OHIO
                                                  )    EASTERN DIVISION
       Respondent-Appellee.                       )
                                                  )




       Before: KENNEDY and DAUGHTREY, Circuit Judges; ADAMS, District Judge.*


       ADAMS, J. Appellant Jeffrey Granger appeals the district court’s denial of his writ of

habeas corpus. He makes two claims in his appeal: (1) that he received ineffective assistance of

counsel because his trial counsel failed to consult with him regarding an appeal, and (2) that he was

denied his right to appeal by the state appellate court despite following the dictates set forth under

Ohio App. R. 5. For the reasons set forth below, we AFFIRM the judgment of the district court.


                                         BACKGROUND


       On April 13, 1999, Appellant was found guilty of robbery, theft and abduction. He was

       *
          The Hon. John R. Adams, United States District Judge for the Northern District of Ohio,
sitting by designation.
No. 05-3275
Granger v. Hurt

represented by retained counsel at trial. Appellant was sentenced to serve five years for robbery, two

years for abduction, and one year for theft.


The sentence for abduction was to be served consecutive with the robbery sentence and the sentence

for theft was to be served concurrently with the other counts, resulting in a total of seven years

incarceration.


        No direct appeal was filed in the case. On September 14, 1999, Appellant filed a pro se

Notice of Appeal and a Motion for Leave to File a Delayed Appeal pursuant to Ohio App. R. 5 with

the Fourth Appellate District of Ohio. Appellant asserted to the appellate court, as required by rule,

his reason for not filing a timely appeal, asserting that retained counsel had failed to file an appeal

despite appellant’s request that the attorney to do so.


        The court expressed its disbelief of this assertion, based on a letter written to Appellant by

his trial attorney. The attorney’s letter, dated August 4, 1999, was written in response to Appellant’s

July 27, 1999 letter. It indicated that the attorney had been contacted by Appellant's family regarding

filing an appeal in April of that year, but that the attorney had not heard from either Appellant or his

family, and thus did not file the notice of appeal. The appellate court also found that Appellant did

not assert that he did not know or was not informed of his right to file an appeal. Rather, the court

found that Appellant actually stated that he was informed by the trial court of his right to appeal, that

he could do so without payment, and if unable to obtain counsel one would be appointed at no cost.

Based on these reasons, the appellate court found the Motion for Leave not well-taken and denied


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it.


       Appellant then sought discretionary review by the Ohio Supreme Court. He asserted the

following two propositions of law:


       Unless the record demonstrates that the defendant knowingly, voluntarily and
       intelligently waived his right to an appeal, the court of appeals must grant a motion
       for delayed appeal.
       The defendant's right to effective assistance of counsel guaranteed under Article I,
       section[s] 10 and 16 of the Ohio Constitution and the Sixth and Fourteenth
       Amendments to the United States Constitution is denied when trial counsel fails to
       file a timely appeal.


(JA at 75) The Ohio Supreme Court denied leave to appeal and dismissed the appeal as not

involving any substantial constitutional question.


       Appellant then filed his habeas petition on May 8, 2001. He raised the following issues:


       Ground one: Petitioner was denied the effective assistance of counsel is in violation
       of the Sixth and Fourteenth amendments to the United States Constitution.
       Supporting FACTS . . . : Trial counsel failed to perfect a timely appeal behalf of
       Petitioner Granger.
       Ground two: Petitioner was denied his right to appeal in violation of the Fifth and
       Fourteenth Amendments to the United States Constitution.
       Supporting FACTS . . . : Petitioner did not knowingly, voluntarily and intelligently
       waive his right to appeal his conviction. When Petitioner learned that his trial
       attorney had not filed a timely notice of appeal in accordance with Petitioner's
       wishes, Petitioner sought to file a delayed appeal. Petitioner submitted documents
       to the state courts establishing his lawyer's failure to properly execute Petitioner's
       desire to appeal his conviction. Nonetheless, the state courts denied Petitioner his
       right to appeal.


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(JA at 9) (Errors in original.) The petition was referred to the Magistrate Judge for a Report and

Recommendation. The Magistrate issued a Report and Recommendation for Appellant to show

cause why the matter should not be dismissed due to the one-year statute of limitations under 28

U.S.C. § 2244(d)(1). Appellant filed a response to the Show Cause Order. On August 6, 2001,

District Judge Marbley adopted the Report and Recommendation and dismissed the petition as

barred by the statute of limitations. An appeal was filed with this court. On December 3, 2003, this

court reversed the judgment of the district court and remanded the petition for consideration on the

merits. Granger v. Hurt, 90 Fed. Appx. 97 (6th Cir. 2004).


       Upon remand, the Magistrate issued a Report and Recommendation for the district court on

the merits of the habeas petition, to which Appellant filed objections. The district court issued an

order adopting the Report and Recommendation as its own, restating Appellant's objections and

finding no merit to those objections after a de novo review based on the reasons discussed in the

Report and Recommendation.


       The Magistrate, in his Report and Recommendation, found that the state appellate court made

a specific finding that Appellant had not presented any evidence that he had asked his trial counsel

to appeal. This factual finding, the Magistrate concluded, is afforded a presumption of correctness

under § 2254. The Magistrate also concluded the following: (1) that there was no indication that

anyone, either Appellant or his family, requested counsel to file an appeal; (2) that Appellant had not

reasonably demonstrated to counsel that he was interesting in appealing; and (3) that there was no

basis upon which to contend that counsel should have concluded that as a rational defendant,

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appellant would want to appeal. Appellant offered no additional facts in support of his contention

that he believed an appeal was pending or that his counsel was supposed to process Appellant's

Notice of Appeal. The Magistrate also noted that there was no indication that Appellant was

prevented from contacting his counsel to request that an appeal be filed within the statutory period

of time. The Magistrate stated that even though Appellant received consecutive sentences, he had

not identified any non-frivolous issues for appeal.


        Appellant filed a Notice of Appeal from the district court's judgment and adoption of the

Report and Recommendation on February 23, 2005. Appellant requested that the district court

certify the following issues for appeal:


        Issue One: Did trial counsel's failure to consult with Granger to ascertain
        whether Granger wanted to appeal the jury verdict and the consecutive sentences
        imposed by the state trial court deny Granger effective assistance of counsel?
        ...
        Issue Two: Whether Granger was denied his right to appeal after he complied
        with the applicable Ohio appellate rule to request a delayed appeal?


(JA at 136-137). The district court certified only the first issue for appeal. However, this court

certified the remaining issue for appeal. The district court issued its final order on January 25, 2005,

disposing of Appellant's claims on his habeas petition. Appellant filed his Notice of Appeal on

February 23, 2005. This court has jurisdiction over the action pursuant to 28 U.S.C. § 2253(a).


        It is noted that Appellant was released at the end of his required incarceration and is currently

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serving the sentence of five years post-release control under the supervision of the Ohio Adult Parole

Authority.


                                   STANDARD OF REVIEW


       The review of a denial of a writ of habeas corpus is de novo. Harpster v. Ohio, 128 F.3d 322,

326 (6th Cir. 1997); Harris v. Stovall, 212 F.3d 940, 942 (6th Cir. 2000). Additionally, any factual

findings made by the district court without the benefit of an evidentiary hearing are also reviewed

de novo. Northrop v. Trippett, 265 F.3d 372, 377 (6th Cir. 2001).


       Because the habeas petition in this action was filed after the Antiterrorism and Effective

Death Penalty Act (AEDPA) took effect, the provisions of that Act apply. Ford v. Curtis, 277 F.3d

806, 808 (6th Cir. 2002). The AEDPA states:


       (d) An application for a writ of habeas corpus on behalf of a person in custody
       pursuant to the judgment of a State court shall not be granted with respect to any
       claim that was adjudicated on the merits in State court proceedings unless the
       adjudication of the claim --
               (1) resulted in a decision that was contrary to, or involved an unreasonable
               application of, clearly established Federal law, as determined by the Supreme
               Court of the United States; or
               (2) resulted in a decision that was based on an unreasonable determination of
               the facts in light of the evidence presented in the State court proceeding.


28 U.S.C. § 2254.


       The "contrary to" clause allows the granting of the habeas petition if the state court makes


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a conclusion opposite that reached by the Supreme Court on a similar question of law or facts.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The "unreasonable application" clause allows the

granting of the writ if "the state court identifies the correct governing legal principle" from Supreme

Court decisions "but unreasonably applies that principle to the facts of the prisoner's case." Id. at

413.


       Ordinarily, if a state court does not articulate its reasoning for ruling, the federal court must

conduct an independent review of the record to determine whether the state court decision is contrary

to the dictates of 28 U.S.C. § 2254. Harris, 212 F.3d at 943. However, if the state court decision

is void of any results or reasoning that would allow a reviewing court to determine whether its

decision was contrary to or involved an unreasonable application of Supreme Court precedent, or

resulted in a decision that was based on an unreasonable determination of the facts in light of the

evidence presented, then this court exercises its independent judgment and reviews the claim de

novo. McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir. 2003).


       One of the issues presented in this appeal is whether trial counsel was ineffective for failing

to consult with Appellant regarding an appeal. The question of whether an individual has been

denied his right to effective assistance of counsel is a mixed question of law and fact. Strickland v.

Washington, 466 U.S. 668, 698 (1984). The state court's finding on this issue is not binding on a

federal court to the extent stated in § 2254(d) but is subject to deference under that statute. Id.


       Under Strickland, a defendant must show (1) that his counsel's performance fell below an


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objective standard of reasonableness, and (2) that his deficient performance caused the defendant to

be prejudiced. Id. at 688.




                                          DISCUSSION


       As stated above, Appellant requests us to reverse the lower court’s dismissal of his habeas

petition and find that he was denied effective assistance of counsel or that he was denied his right

to appeal.   Appellee argues that the ineffective assistance of counsel claim has not been fairly

presented to the state court and thus has not been exhausted. Appellee alternatively argues that if

this court finds that the issue has been properly exhausted and conducts a Strickland analysis, it

should only afford deference to the state appellate court’s ruling on the performance prong. Appellee

asserts that the prejudice prong, however, should be reviewed de novo because it was never

addressed by the state appellate court. See Wiggins v. Smith, 539 U.S. 510, 527-528 (2003). Finally,

Appellee argues that Appellant’s claim that he was denied his right to appeal was not addressed on

the merits by the Ohio Supreme Court, this court should also do a de novo review of that claim.


       It is first necessary to discuss exhaustion. If one issue remains unexhausted, the petition

should be dismissed to allow the state courts the ability to rule on the merits of the issue. Rose v.

Lundy, 455 U.S. 509, 515-20 (1982).


I. Exhaustion Requirement


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         Appellee claims that in addition to the fact that the ineffective assistance of counsel claim

was not presented to the state appellate courts and thus has not been exhausted, there remains a

remedy in the state courts because Appellant could file a second motion for a delayed appeal.

Appellant responds to this argument by claiming that Appellee waived this defense in his answer

filed in the district court.


         The exhaustion defense can be waived only if the state expressly does so. See 28 U.S.C. §

2254(b)(3). The Return of Writ filed by Appellee with the district court states the following:


         Pursuant to the decision of the Sixth Circuit, Granger’s petition for writ of habeas
         corpus must be considered timely filed. The Warden, however, does not waive his
         objection to the timeliness of Granger’s petition. The Warden maintains his position
         that Abela v. Martin, 348 F.3d 164 (6th Cir. 2003), petition for cert. filed, (U.S. Feb.
         2, 2004)(Case No. 03-1079), was wrongly decided and that Granger’s petition for
         writ of habeas corpus is barred by the one-year statute of limitations imposed by the
         AEDPA. Granger’s claims are otherwise exhausted and preserved for federal review.


(JA at 50) Although it appears that Appellee has waived the exhaustion defense on all of Appellant’s

claims, the issue of whether counsel was ineffective for failing to consult with Appellant regarding

an appeal was not raised in the Motion to File a Delayed Appeal with the first state appellate court

to review the case1 and was not raised as a proposition of law before the Ohio Supreme Court,2 but
1
  The issue raised before the first state appellate court in the Motion to File a Delayed Appeal was whether trial counsel
was ineffective for failing to timely file an appeal. (JA at 73) In that Motion, Appellant argued that his attorney failed
to file an appeal even though specifically requested to do so. (JA at 63) (stating, “Defendant requested his retained Trial-
Attorney, Samuel B. W einer, to file a Notice of Appeal in his behalf. Defendant was under the impression that this had
been done and his appeal was pending until recently learning otherwise.”) The appellate court found Appellee’s assertion
without merit due to the letter to Appellant by his attorney. (JA at 73)

2
  The proposition of law stated for jurisdiction before the Ohio Supreme Court was whether, “The defendant’s right to
the effective assistance of counsel guaranteed under Article I, section[s] 10 and 16 of the Ohio Constitution and the Sixth
and Fourteenth Amendments to the United States Constitution is denied when trial counsel fails to file a timely appeal.”

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appears to have been first raised in the memorandum before that court. Additionally, this basis is

not asserted as one of the grounds for relief in the petition for habeas corpus or in the facts stated in

support of those grounds, but is found in the memorandum in support of the petition. The issue

raised before the district court was whether Appellant was denied effective assistance of counsel due

to trial counsel’s failure to perfect a timely appeal. (JA at 9)


         The issue raised and argued before the state appellate courts, whether Appellant was denied

effective assistance of counsel due to his trial attorney’s failure to file the appeal after being asked

to do so, was apparently abandoned by Appellant at the state level. As noted above, Appellant did

not raise this issue before the district court.


         Under § 2254, a state prisoner must first exhaust his state court remedies in order to seek

federal habeas relief. 28 U.S.C. § 2254(b). In order for a claim to be exhausted, the state appellate

court must be given the opportunity to rule on both the factual and legal basis of the claim. Hannah

v. Conley, 49 F.3d 1193, 1196 (6th Cir. 1995) (quoting Manning v. Alexander, 912 F.2d 878, 881

(6th Cir. 1990). The exhaustion doctrine requires that claims be “fairly presented” to the state

appellate courts. Picard v. Connor, 404 U.S. 270, 275 (1971); Lyons v. Stovall, 188 F.3d 327, 331

(6th Cir. 1999). However, in order to be fairly presented to the state courts, a claim cannot have been

brought for the first time before the state’s highest court on discretionary review as was done here.



(JA at 75) (Emphasis added.) The attached memorandum, however, appears to raise the failure to consult issue for the
first time when Appellant states, “By failing to clarify whether his client wished to pursue his appeal and by failing to
file a notice of appeal, trial counsel’s performance was defective and prejudiced Mr. Granger’s ability to obtain an appeal
as of right.” (JA at 81) (Emphasis added.)

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Castille v. Peoples, 489 U.S. 346, 351 (1989). Because the issue was raised for the first time before

the state’s Supreme Court on discretionary review, the issue of ineffectiveness for failing to consult

with Appellant to determine whether he wished to appeal remains unexhausted. If Appellant is now

barred from making those claims with the state courts, a federal court should not dismiss the writ for

lack of jurisdiction but should require him to show cause to excuse and actual prejudice. Hannah,

49 F.3d at 1196 (citing to Coleman v. Thompson, 501 U.S. 722, 750-51 (1991)).


        Additionally, as argued by Appellee, because the issue has not been raised in the state

appellate courts, Appellant could file a second motion for delayed appeal, providing his additional

reason for failing to file a timely direct appeal. However, as stated above, if one claim remains

unexhausted in a habeas petition and no exception applies, the petition for habeas corpus must be

dismissed for lack of exhaustion if there remains a remedy in the state courts for the petitioner.

Hannah, 49 F.3d at 1195. Therefore, we ordinarily would dismiss the petition for failure to exhaust.


        The Supreme Court has held that the exhaustion requirement, however, is not jurisdictional,

and that a court “should determine whether the interests of comity and federalism will be better

served by addressing the merits [of an unexhausted claim] forthwith or by requiring a series of

additional state and district court proceedings before reviewing the merits” of the claim. Granberry

v. Greer, 481 U.S. 129, 134 (1987). In this case, it is likely that the state appellate court will not take

well to a claim contrary to the original one made before it. As stated previously in the Motion to File

a Delayed Appeal, Appellant claimed that he expressly requested that his counsel file an appeal for

him and was not aware that one was not pending until receiving counsel’s letter. Therefore, if

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Appellant were to file a second motion for leave to file a delayed appeal, he would be making an

assertion that counsel never consulted with him about filing an appeal which would be in direct

contradiction to the claim previously made. Because the motion would lack credibility, it is unlikely

that it would be granted. For this reason, we conclude that the interests of comity and federalism

would be best served to rule on the merits rather than dismiss for failure to exhaust.


II. Ineffective Assistance of Counsel for Failure to Consult


       Appellant contends that his trial counsel was ineffective for failing to consult with him about

whether he desired to file a direct appeal. Under the Sixth Amendment to the Constitution, criminal

defendants have the right to effective assistance of counsel. Strickland, 466 U.S. at 685-86. In an

ineffective assistance of counsel claim, a defendant must show that his counsel’s performance was

deficient and that it prejudiced his defense. Id. at 687. Deficiency can be found when counsel’s

performance was objectively unreasonable under the circumstances. Id. at 688. Prejudice can be

found if “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Id. at 694. The term “reasonable probability,” when

dealing with ineffective assistance of counsel claims, means that there is “a probability sufficient to

undermine confidence in the outcome.” Id. Additionally, in order to grant a writ of habeas corpus,

the state court’s application of Strickland must be objectively unreasonable. 28 U.S.C. § 2254(d).


       As stated above, the issue of whether counsel was ineffective for failing to consult with

Appellant on whether a direct appeal should be taken was not fairly presented before the state courts.


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Therefore, this court must perform a de novo review of the claim. Maples v. Stegall, 340 F.3d 433,

436 (6th Cir. 2003).


       In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court held that there is a

“constitutionally imposed duty to consult with the defendant about an appeal when there is reason

to think either (1) that a rational defendant would want to appeal (for example, because there are

nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to

counsel that he was interested in appealing.” Id. at 480. This requires consideration of all

information the attorney knew or should have known at the time. Id. The Supreme Court stated that

relevant to this inquiry is whether there was a trial or a guilty plea. Id. The Court, however, failed

to adopt a per se rule that counsel is always ineffective for failing to consult with a defendant

regarding an appeal. Id. at 481. The Court looked to those situations where “a sentencing court’s

instructions to a defendant about his appeal rights in a particular case are so clear and informative

as to substitute for counsel’s duty to consult. In some cases, counsel might then reasonably decide

that he need not repeat that information.” Id. at 479-80.


       The district court found that there was no evidence that Appellant “reasonably demonstrated

to counsel that he was interested in appealing” or that “counsel should have concluded that ‘a

rational defendant would want to appeal’ in this case.” (JA at 117) It is unlikely that this finding

would be considered clearly erroneous, as the letters presented by Appellant demonstrate that it was

never expressed to his trial attorney, by either Appellant or his family, that Appellant desired an

appeal to be filed. Additionally, Appellant’s argument that a rational defendant would want to

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appeal in this case is based only on the fact that he went to trial rather than enter into a plea

agreement and the fact that he received consecutive sentences for two of the three crimes of which

he was convicted.


        Appellant’s own actions suggest that the imposition of consecutive sentences does not

necessarily implicate a basis for appeal. Afterall, he did not file his Motion for Leave to File a

Delayed Appeal based on receiving consecutive sentences, as allowed under the Ohio Revised Code

and Appellate Rule 5. Ohio Rev. Code § 2953.08(C); Ohio App. R. 5(D)(1). Therefore, the only

basis remaining is that Appellant had a trial in the case. Appellant has not even argued that errors

were made during the trial. Without more, this court is unlikely to find that a rational defendant

would have wanted an appeal. Additionally, the district court found that Appellant had presented

no evidence that there were nonfrivolous grounds for appeal. (JA at 117)


        We also note that there is no dispute that Appellant informed by the trial court that he had

a right to appeal and that he could do so without costs and with appointed counsel. The term

“consult” is defined by the Supreme Court to entail, “advising the defendant about the advantages

and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s

wishes.” Roe, 528 U.S. at 478. Unfortunately, this court has no record before it of the sentencing

proceedings and, therefore, cannot confirm whether the trial court itself fulfilled this obligation.

However, the letter Appellant sent to his trial counsel on July 27, 1999, clearly states that Appellant

knew that he was “entitled to an appeal as a matter of right.” (JA at 68) It is also worthy to note

that the district court found that Appellant, unlike the petitioner in Roe, was not in a position at the

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institution where he could not file a direct appeal. (JA at 117-18)


       Under Roe, the inquiry is what the attorney knew or should have known at the time. In this

instance, neither Appellant nor his family had directly expressed a desire to have an appeal filed by

trial counsel. In the absence of proof to the contrary, we may assume that Appellant had been

informed by the trial court of his rights to appeal, knew that he was entitled to an appeal as a matter

of right, knew that he was entitled to file such without costs and with appointed counsel, and was

not in a position to be prevented from filing an appeal within the statutory time allotted. Based on

this record, we conclude that Appellant has failed to show that his counsel’s representation fell

below an objective standard of reasonableness. It is therefore not necessary to address the second

prong under Strickland.


       But even if we were to undertake an analysis of this second prong, the inquiry on denial of

the right to obtain a direct appeal is whether “counsel’s deficient performance . . . actually cause[d]

the forfeiture of the defendant’s appeal.” Roe, 528 U.S. at 484. The Supreme Court did state that

if the appealing defendant “cannot demonstrate that, but for counsel’s deficient performance, he

would have appealed, counsel’s deficient performance has not deprived him of anything, and he is

not entitled to relief.” Id. In order to make such a showing, Appellant must “demonstrate that there

is a reasonable probability that, but for counsel’s deficient failure to consult with him about an

appeal, he would have timely appealed.” Id.


       This standard looks to whether Appellant presented any evidence of a nonfrivolous issue for


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appeal. Id. at 485-86 (stating, “evidence that there were nonfrivolous grounds for appeal or that the

defendant in question promptly expressed a desire to appeal will be highly relevant in making this

determination”). The district court found that there were no nonfrivolous issues raised by Appellant

as proper grounds for appeal. Appellant argues that he has identified nonfrivolous grounds for

appeal because, at minimum, he received consecutive sentences. However, receiving consecutive

sentences, at the time Appellant’s sentence was imposed, was not a violation of Ohio law and was

strictly controlled by statute. Ohio Rev. Code § 2929.14(E)(4), invalidated by State v. Foster, 845

N.E.2d 470 (Ohio 2006). Appellant has, therefore, failed to set forth evidence or argument that the

trial court’s imposition of consecutive sentences violated Ohio’s sentencing statutes. Additionally,

the mere fact that Appellant had a trial in the case does not direct the court to any errors that may

have occurred during the trial. Without more, we are unable to find prejudice under a Strickland

analysis and conclude that Appellant’s first ground for appeal is without merit.


III. Denial of Due Process Rights for Failing to Grant Motion for Delayed Appeal


       Appellant’s second ground for relief is that he was denied his right to receive a delayed

appeal despite complying with the requirements of Ohio App. R. 5. The Supreme Court has held

that there is no requirement that a state afford an appeal. Griffin v. Illinois, 351 U.S. 12, 18 (1956).

The State of Ohio, however, has integrated appellate courts into its criminal justice system. “[I]f a

State has created appellate courts as an integral part of the system for finally adjudicating the guilt

or innocence of a defendant, the procedures used in deciding appeals must comport with the demands

of the Due Process and Equal Protection Clauses of the Constitution.” Evitts v. Lucey, 469 U.S. 387,

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393 (1985) (internal citation omitted).


        The rule at issue, Ohio App. R. 5, states in pertinent part, “A motion for leave to appeal shall

be filed with the court of appeals and shall set forth the reasons for the failure of the appellant to

perfect an appeal as of right. . . .” Appellant argues that because he filed the Motion with the court

of appeals and set forth the reason for his failure, he should have been granted leave and failure to

do so violated his right to due process. He additionally states that there is no good cause requirement

under the statute. However, similar to Ohio Rev. Code. § 2953.05, under Rule 5(A) “where there

has not been a timely appeal as a matter of right, appeal may be had only by leave of court for good

cause shown.” Keener v. Ridenour, 594 F.2d 581, 585 (6th Cir. 1979). Additionally, this court has

previously read into Rule 5 an implied requirement of good cause in Dietz v. Money, 391 F.3d 804

(6th Cir. 2004). In Dietz, it was held that “[t]he decision to grant or deny a motion for leave to

appeal pursuant to rule 5(A) is therefore solely within the discretion of the appellate court.” Id. at

811. It was for that reason that Ohio App. R. 5 was found to not be “firmly established and regularly

followed.” Id. (internal quotations omitted).


        If a criminal defendant were automatically granted leave to appeal by merely filing the proper

motion and setting forth any reason, “state court judgments would never attain finality because they

would always be subject to reconsideration on a motion for a delayed appeal.” Cf. Wheeler v. Jones,

226 F.3d 656, 660 (6th Cir. 2000). Based on the above, we conclude that Appellant’s second ground

for relief is not well-taken.



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                                          CONCLUSION


       Based on the above, we hold that Appellant has failed to exhaust the issue of whether

counsel was ineffective for failing to consult with him regarding an appeal. However, in the

interest of comity and federalism, we have reviewed the claim on its merits. When looking to the

merits of Appellant’s claims, we conclude that the first ground for relief fails to satisfy either

prong of Strickland to establish ineffective assistance of counsel. Further, Appellant’s second

ground is also without merit because it fails to meet the good cause requirement under Ohio App.

R. 5. Therefore, we AFFIRM the judgment of the district court denying Appellant’s petition for

writ of habeas corpus.




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