                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 14a0076p.06

                UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                                X
                                                 -
 MATTHEW E. GUNNER,
                                                 -
                              Petitioner-Appellant,
                                                 -
                                                 -
                                                    No. 13-3396
         v.
                                                 ,
                                                  >
                                                 -
                       Respondent-Appellee. -
 ROBERT WELCH, Warden,
                                                N
                 Appeal from the United States District Court
                  for the Northern District of Ohio at Toledo.
            No. 3:09-cv-03009—Benita Y. Pearson, District Judge.
                            Decided and Filed: April 17, 2014
     Before: MOORE and GRIFFIN, Circuit Judges; KORMAN, District Judge.*

                                     _________________

                                          COUNSEL
ON BRIEF: John F. Potts, LAW OFFICE OF JOHN F. POTTS, Toledo, Ohio, for
Appellant. Gene D. Park, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee.

                                     _________________

                                           OPINION
                                     _________________

        EDWARD R. KORMAN, District Judge. This appeal from a judgment of the
United States District Court for the Northern District of Ohio denying a petition for a
writ of habeas corpus raises a significant issue regarding the obligation of assigned
appellate counsel in Ohio. Specifically, petitioner was convicted of drug trafficking
offenses and sentenced to two concurrent ten year mandatory-minimum sentences. Prior



        *
       The Honorable Edward Korman, Senior United States District Judge for the Eastern District of
New York, sitting by designation.


                                                1
No. 13-3396         Gunner v. Welch                                                   Page 2


to trial, the prosecutor offered petitioner a plea that would have eliminated the
mandatory-minimum sentence of ten years. R. 8-1, Tr. of Proceedings at 118-21 (Page
ID #166-69). Instead, petitioner would have faced a sentence of three to ten years. Id.
The nature of the plea was explained to petitioner by the trial judge and the prosecutor.
Id. Indeed, the trial judge asked the prosecutor to place on the record the nature of the
evidence against petitioner if he went to trial. Id. at 121-24 (Page ID #169-73). We
need not burden this opinion with a detailed discussion of that evidence. Suffice it to say
that the case as outlined by the prosecutor during the discussion of a possible plea was
exceptionally compelling. Indeed, as petitioner’s first counsel on appeal, Stephen D.
Long, advised him, “the state had a very strong case at trial, in my opinion, and you were
a proverbial ‘fish in a barrel.’” R. 8-1, Letter from Stephen D. Long to Matthew Gunner
(Aug. 17, 2006) at 106 (Page ID #154).

        Nevertheless, petitioner did not accept the plea bargain because, as he alleges in
an uncontroverted affidavit, his trial counsel “never recommended that I take the plea
bargain, and encouraged me to go to trial.” R. 8-1, Aff. of Matthew Gunner at 103 (Page
ID #151). Instead, trial counsel told petitioner that, if he took the plea bargain, he might
get sentenced to at least five years, but he could just as likely get ten years, “and if I got
10 years on a plea bargain, I had no chance to appeal, but if we lost at trial and I got 10
years, we would be able to appeal.” Id. Petitioner’s affidavit continues that, “I was
never told that if I had never been to prison before, the Judge was required to at least
consider giving me the minimum sentence of 3 years, or that by law a maximum
sentence was only supposed to be given to the worst offenders. I was never told that if
I took the plea bargain and got the maximum 10 years sentence, it could be appealed.”
Id.; see Ohio Rev. Code Ann. § 2953.08(a)(1).

        After the inevitable guilty verdict that followed petitioner’s rejection of the plea
offer, his mother spoke with Mr. Long in an effort to explain the circumstances
surrounding the rejection of the plea. According to her affidavit, “Mr. Long told me he
did not want to talk to me about what happened because he could only use what was in
the record and he wanted to look at the record fresh, the same way the Court of Appeals
No. 13-3396        Gunner v. Welch                                                  Page 3


would look at it.” R. 8-1, Aff. of Michelle Borowicz at 108 (Page ID #156). In his own
affidavit filed in the district court, Mr. Long did not dispute the affidavit filed by
petitioner’s mother. R. 18-1, Aff. of Stephen D. Long at 1-2 (Page ID #317-18).
Instead, he asserted that he was appointed to represent petitioner only for matters
“related to his direct appeal as a matter of right.” Id.

       Mr. Long’s narrow view of his role brings us to the heart of the issue on this
appeal. A brief review of Ohio law as it relates to appeals from a judgment of conviction
is necessary to place the issue in context. A claim of ineffective assistance of counsel
that is dependent on facts that are not part of the trial record cannot be raised on direct
appeal. Instead, it must be raised in a post-conviction proceeding pursuant to Ohio Rev.
Code § 2953.21. Because the Ohio General Assembly intended that “the direct appeals
process run concurrently with the post-conviction process in criminal cases,” To Make
Changes in the Postconviction Relief Law: Hearing on S.B.4 Before the Subcomm. on
Criminal Justice of the S. Comm. on the Judiciary, 121st Sess., (Ohio Jan. 17, 1995)
(statement of Sen. Bruce Johnson, sponsor of bill), it provided that such a petition must
be filed within 180 days from the date on which the trial transcript is filed with the
appellate court, Ohio Rev. Code Ann. § 2953.21(c)(2). By “setting as the triggering
event the filing of the transcript in the direct appeal of the judgment of conviction, the
legislature effectively acknowledged that the trial record plays as critical a role in
preparing a postconviction petition as it does in prosecuting a direct appeal.” State v.
Fuller, 870 N.E.2d 255, 261 (Ohio Ct. App. 2007) (internal quotations omitted).

       Nevertheless, Mr. Long did not advise petitioner or his mother when the trial
transcript was filed. Nor did he advise them of the short filing deadline. Instead, he let
the 180-day period pass. After the Sixth District Court of Appeals of Ohio affirmed the
judgment of conviction, Mr. Long was replaced by another attorney, who filed a notice
of appeal to the Supreme Court of Ohio and endeavored to obtain relief for petitioner by
filing an application for reopening the appeal pursuant to Ohio Appellate Rule 26(B).
The basis for the motion was that Mr. Long had been ineffective because he had failed
to advise petitioner on the time limit for post-conviction relief. The motion was denied
No. 13-3396         Gunner v. Welch                                                  Page 4


because this was not a ground for relief under Rule 26(B). R. 8-1, Decision and J. of the
Ct. of Appeals of Ohio Sixth Appellate District at 140-43 (Page ID #188-91).

        This petition for a writ of habeas corpus was then filed in the United States
District Court for the Northern District of Ohio. The petition asserted a single claim,
namely, that petitioner’s “trial counsel was constitutionally ineffective for failing to
advise him in the strongest possible terms to take a plea bargain offered by the State.”
R. 23, Mem. of Op. and Order at 4 (Page ID #384). Pointing to the fact that he was only
eighteen-years-old at the time of his trial with no prior felony record, petitioner argued
that if he had accepted the offer he was likely to receive a sentence well below the ten-
year mandatory-minimum to which he was ultimately sentenced. Id. While petitioner
acknowledged that this claim should have been raised in a post-conviction proceeding
pursuant to § 2953.21, he argued that his failure to do so should be excused because Mr.
Long, his appellate attorney, failed to advise him of the time limit for post-conviction
relief. Id.

        The district judge denied the petition on the ground that Mr. Long was under no
obligation to provide such advice and that his failure to do so did not excuse petitioner’s
procedural default. Id. at 11 (Page ID #391). Relying on Wilson v. Hurley, 382 Fed.
Appx. 471, 472 (6th Cir. 2010), an unpublished opinion that does not constitute binding
precedent, United States v. Utesch, 596 F.3d 302, 312 (6th Cir. 2010), the district judge
held “that a direct-appeal attorney cannot deprive a client of constitutionally effective
assistance of counsel by failing to advise that client of matters outside the direct appeal
for which there is no right to an attorney under the Constitution.” R. 23, Mem. of Op.
and Order at 12 (Page ID #392); Gunner v. Welch, No. 3:09CV03009, 2013 WL 774154,
at *7 (N.D. Ohio Feb. 28, 2013). Thus, because petitioner did not have a right to an
attorney in the post-conviction proceeding, his attorney on direct appeal had no
obligation to advise him of the time limit for pursuing that remedy.

        We disagree with the analysis of the district court. This case presents two discrete
issues. The first is whether petitioner’s first appellate counsel had an obligation to
apprise him of the date on which the trial transcript was filed and the fact that he had 180
No. 13-3396            Gunner v. Welch                                                              Page 5


days from that date to file a petition for post-conviction relief challenging the
ineffectiveness of his trial counsel. This argument is analytically separate from the issue
of whether petitioner’s first appellate counsel was obligated to file such a petition.
Moreover, this issue is also separate from the issue of whether petitioner had a
constitutional right to the effective assistance of counsel in a collateral proceeding.
Nevertheless, as we discuss below, because petitioner’s claim of the ineffective
assistance of trial counsel had arguable merit and could be raised only in a collateral
proceeding, he would have been afforded the assistance of counsel under Ohio law and
practice as well as the Sixth Amendment.

                                            DISCUSSION

         We begin by observing that it is common ground that, unless petitioner can show
cause for his failure to file a petition for post-conviction relief in Ohio based on the
failure of his trial counsel to properly advise him to take the plea that was offered, the
claim is procedurally forfeited. Wainwright v. Sykes, 433 U.S. 72, 87 (1977).1 It is also
common ground that “an attorney’s errors during an appeal on direct review may provide
cause to excuse a procedural default; for if the attorney appointed by the State to pursue
the direct appeal is ineffective, the prisoner has been denied fair process and the
opportunity to comply with the State’s procedures and obtain an adjudication on the
merits of his claims.” Martinez v. Ryan, 132 S. Ct. 1309, 1317 (2012).

         “The proper measure of attorney performance remains simply reasonableness
under prevailing professional norms. [The Supreme Court has long] recognized that
[p]revailing norms of practice as reflected in American Bar Association standards and
the like . . . are guides to determining what is reasonable . . . .” Padilla v. Kentucky,
559 U.S. 356, 366-67 (2010) (internal citations and quotations omitted). The same is



         1
            A showing of prejudice is also normally required to avoid a procedural forfeiture. Wainwright
v. Sykes, 433 U.S. 72, 87 (1977). We focus here on the cause of the alleged procedural default because
petitioner was deprived of his right to a post-conviction proceeding made available by Ohio law. Such a
proceeding was the only way in which petitioner could challenge the effectiveness of his trial counsel.
Moreover, he has adequately alleged that there is a reasonable probability that, but for appellate counsel’s
failure, he would have timely filed a petition for post-conviction relief. See Roe v. Flores-Ortega, 528 U.S.
470, 483-84 (2000).
No. 13-3396         Gunner v. Welch                                                  Page 6


equally true of an agent’s obligations to his principal under the law of agency. See e.g.,
Maples v. Thomas, 132 S. Ct. 912, 924 (2012). “Although they are only guides, and not
inexorable commands, these standards may be valuable measures of the prevailing
professional norms of effective representation . . . .” Padilla v. Kentucky, 559 U.S. 356,
366-67 (2010) (internal citations and quotations omitted).

        Under well-settled agency law, “an agent is subject to a duty to use reasonable
efforts to give his principal information which is relevant to affairs entrusted to him and
which, as the agent has notice, the principal would desire to have and which can be
communicated without violating a superior duty to a third person.” Restatement
(Second) of Agency § 381 (1958). In the present case, Mr. Long was aware of the fact
that petitioner had turned down a potentially favorable plea offer in a case in which “the
state had a very strong case at trial,” and, in his opinion, petitioner was a “proverbial
‘fish in a barrel.’” R. 8-1, Letter from Stephen D. Long to Matthew Gunner (Aug. 17,
2006) at 106 (Page ID #154). Moreover, petitioner’s mother had attempted to raise the
issue of the circumstances surrounding the rejection of the plea offer with Mr. Long.
Surely, Mr. Long knew or had reason to know that petitioner would have desired to have
Mr. Long communicate to him the time constraints for filing post-conviction relief
challenging the effectiveness of his trial counsel.

        Nor is it relevant that the information related to a possible proceeding that Mr.
Long would not have been obligated to pursue. Comment a to § 381 Restatement
(Second) of Agency is particularly apposite here. The comment observes that “a person
whose authority is only to collect a debt and not to bring action upon it may obtain
information that in order to collect the debt it is necessary to take immediate legal steps,
as by attachment. In this situation, the agent’s duty is to communicate the information
in order that the principal may choose what he will do.” Restatement (Second) of
Agency § 381, Comment a (1958) (emphasis added). Mr. Long was retained to
challenge the judgment of conviction on appeal. The only viable issue that was available
–the ineffective assistance of trial counsel– had to be brought in a separate proceeding,
and the timing of that proceeding was integrally related to the filing of the transcript on
No. 13-3396             Gunner v. Welch                                                              Page 7


direct appeal. Mr. Long knew or should have known that this proceeding had to be
brought within 180 days of the date on which the trial transcript was filed with the Ohio
Court of Appeals, and he also knew that his client would surely have not known when
the trial transcript was filed or of the necessity to take immediate legal steps. Under
these circumstances, just as the debt collector was obligated to inform his principal of
the necessity to take immediate legal steps to collect the debt, even though he was not
obligated to take those legal steps, Mr. Long was obligated to communicate comparable
information to petitioner.2

         We need not here rely only on hornbook agency law to reject the premise that a
lawyer retained to represent a defendant in a particular proceeding has no obligation to
apprise his client of information directly “relevant to the affairs entrusted to him and
which, as the agent has notice, the principal would desire to have.” Restatement
(Second) of Agency § 381 (1957). We have held that “[t]he Constitution requires that
counsel make objectively reasonable choices, and must do so not only during the legal
proceeding for which the counsel represents the client, but also after the judicial
proceeding has concluded in determining whether an appeal should be filed.” Smith v.
State of Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 433-34 (6th Cir. 2006) (internal
quotations omitted). Indeed, we there adopted and quoted from our holding in an earlier
unpublished opinion, which held, in part, “that due to counsel’s delay in informing
defendant of the decision on his first appeal of right and counsel’s fail[ure] to
communicate to his client how to proceed with further appeals, it cannot fairly be said
that [the defendant] truly had his first appeal of right.” Paris v. Turner, No. 97-4129,
1999 WL 357815, at *2-*3 (6th Cir. May 26, 1999). Likewise ABA Model Rule of
Professional Conduct 1.3, Comment (1996) provides: “[I]f a lawyer has handled a
judicial or administrative proceeding that produced a result adverse to the client but has
not been specifically instructed concerning pursuit of an appeal, the lawyer should

         2
            Not only did Mr. Long fail to inform Gunner of the deadline and the need to file a petition for
collateral review, but also this failure to do so actually disarmed Gunner. Just like the petitioner in Maples
v. Thomas, 132 S. Ct. 912, 927 (2012), Gunner was unaware that he had to fend for himself in order to
protect invaluable legal rights. See id. at 924 (noting that a prisoner should not “be faulted for failing to
act on his own behalf when he lacks reason to believe his attorney[] of record, in fact, [is] not representing
him”).
No. 13-3396         Gunner v. Welch                                                   Page 8


advise the client of the possibility of appeal before relinquishing responsibility for the
matter.”

        Significantly, we observed in Smith that the Supreme Court has applied this
standard to hold that trial counsel has a constitutional duty to consult with clients about
filing an appeal after the trial proceedings have concluded “when there is reason to think
either (1) that a rational defendant would want to appeal . . ., or (2) that this particular
defendant reasonably demonstrated to counsel that he was interested in appealing.”
Smith, 463 F.3d at 434 (quoting Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000)). More
specifically, the Supreme Court held in Roe that, where either of these two circumstances
are met, an attorney is required to advise the defendant “about the advantages and
disadvantages of taking an appeal” and to make “a reasonable effort to discover the
defendant’s wishes.” Roe, 528 U.S. at 471. Such advice was particularly critical
because the failure of counsel to provide it “arguably led not to a judicial proceeding of
disputed reliability, but rather to the forfeiture of [the appellate] proceeding itself.” Id.
at 483. Indeed, in the seminal case defining the obligations of a defense attorney, the
Supreme Court held that, among the “more particular duties” that derive from “counsel’s
function as assistant to the defendant” are the “duties to consult with the defendant on
important decisions and to keep the defendant informed of important developments in
the course of the prosecution.” Strickland v. Washington, 466 U.S. 668, 688 (1984).
Surely, the date of an event on direct appeal that triggers the time for the filing of a post-
conviction petition constitutes such an important development.

        Nor do we find persuasive the argument that the advice Mr. Long failed to
provide related to a proceeding “for which there is no right to an attorney under the
Constitution.” R. 23, Mem. of Op. and Order at 12 (Page ID #392); Gunner, 2013 WL
774154, at *7. While the Supreme Court has held that, as a general matter, a defendant
may not be entitled to the assistance of counsel in a collateral proceeding, when an
initial-review collateral proceeding is the first designated proceeding for a prisoner to
raise a claim of ineffective assistance at trial, this circumstance “may justify an
exception to the constitutional rule that there is no right to counsel in collateral
No. 13-3396            Gunner v. Welch                                                             Page 9


proceedings.” Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012). In holding that an
attorney’s errors on direct appeal may provide cause to excuse a procedural default, the
Supreme Court observed that, “[w]here, as here, the initial-review collateral proceeding
is the first designated proceeding for a prisoner to raise a claim of ineffective assistance
at trial, the collateral proceeding is in many ways the equivalent of a prisoner’s direct
appeal as to the ineffective-assistance claim.” Id. at 1317. The Supreme Court further
explained that “[t]his is because the state habeas court looks to the merits of the clai[m]
of ineffective assistance, no other court has addressed the claim, and defendants pursuing
first-tier review . . . are generally ill equipped to represent themselves because they do
not have a brief from counsel or an opinion of the court addressing their claim of error.”
Id. (internal quotations and citations omitted).

         Moreover, while the Supreme Court acknowledged that there were “sound
reasons for deferring consideration of ineffective-assistance-of-trial-counsel claims until
the collateral-review stage, . . . this decision is not without consequences for the State’s
ability to assert a procedural default in later proceedings.” Id. at 1318. Indeed, in
language directly applicable to this case, the Supreme Court held that, “[b]y deliberately
choosing to move trial-ineffectiveness claims outside of the direct-appeal process, where
counsel is constitutionally guaranteed, the State significantly diminishes prisoners’
ability to file such claims. It is within the context of this state procedural framework that
counsel’s ineffectiveness in an initial-review collateral proceeding qualifies as cause for
a procedural default.” Id. at 1318.3 This is a complete answer to the district court’s
argument that petitioner cannot complain of Mr. Long’s failure to advise him of the
filing deadline for an initial-review collateral proceeding because that proceeding is one
“for which there is no right to an attorney under the Constitution.” R. 23, Mem. of Op.
and Order at 12 (Page ID #392); Gunner v. Welch, 3:09CV03009, 2013 WL 774154, at
*7 (N.D. Ohio Feb. 28, 2013).

         3
           Subsequently, in Trevino v. Thaler, 133 S.Ct. 1911, 185 (2013), the Supreme Court broadened
the reach of Martinez, holding that its rule also applies where, although state procedural law may permit
defendants to raise ineffective-assistance claims on direct appeal, a state’s “procedural framework, by
reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a
meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal.” Id. at
1921.
No. 13-3396            Gunner v. Welch                                                          Page 10


         Nor would there have been any merit to the argument even before the holding in
Martinez. While a defendant may not be able to complain of the failure of counsel to file
an application for relief to which the Constitution did not entitle him, Wainwright v.
Torna, 455 U.S. 586, 587 (1982), that is an altogether different question from whether
a defendant can complain about the failure of counsel to advise him of relief that may
be available to him or of the necessity to proceed expeditiously if he wishes to obtain
such relief.

         The issue of the Sixth Amendment aside, petitioner would have very likely been
provided with the assistance of counsel under Ohio law and practice. Thus, as the
district court recognized, an Ohio prisoner will be provided with post-conviction counsel
“where (1) the postconviction court determines that the petitioner’s allegations warrant
an evidentiary hearing, and (2) counsel determines that the petitioner’s allegations have
‘arguable merit.’” Gunner, 2013 WL 774154, at *10. Significantly, at the time the 180-
day filing deadline was enacted, it was the practice of the Legal Division of the Office
of the Ohio Public Defender to review the applications of non-capital case inmates
seeking post-conviction relief. Ohio Legis. Budget Office, Fiscal Note & Local Impact
Statement, S.B. 4, 121st Sess., at 7 (1995). “Staff attorneys [would] conduct a merit
review of each case.” Id. “One attorney [was] generally assigned to review a [post-
conviction relief] petition, although that attorney may require assistance from a
paralegal, an investigator and/or a secretary. The length of time required to complete the
review varie[d] with the complexity of the case, but can be anything from a few hours
upwards, with an average of approximately five hours.” Id. Those petitions found to
have “arguable merit” are then litigated by the office. Id.4

         While petitioner did not file a post-conviction motion, it would have been futile
to do so because the 180-day period in which to file such a petition had long since run


         4
          The document from which we have quoted was prepared in 1995 to advise the Ohio General
Assembly of the fiscal impact of the 180-day filing deadline on the judicial branch and those associated
with the prosecution and defense of criminal cases. There is no indication that the practice has changed
since then. On the contrary, the website of the Office of the Ohio Public Defender’s indicates that it has
not changed. Legal Division – Appeals and Post-Conviction Section, Office of the Ohio Public Defender,
http://www.opd.ohio.gov/Legal/Legal_Main.htm (last visited Feb. 27, 2014).
No. 13-3396        Gunner v. Welch                                               Page 11


as a direct consequence of the failure of his appellate counsel to provide him with
relevant information. This failure amounted to ineffective assistance of appellate
counsel and thus constitutes sufficient cause to excuse the procedural default that would
otherwise subject the petition for habeas corpus to dismissal.

                                   CONCLUSION

       We REVERSE the district court’s dismissal of the petition for a writ of habeas
corpus and REMAND for consideration of the petition on the merits.
