[Cite as State v. Huber, 2011-Ohio-3240.]



          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 93923




                                    STATE OF OHIO
                                                            APPELLANT

                                                   vs.

                                    JOSEPH HUBER
                                                            APPELLEE




                                     JUDGMENT:
                                 APPLICATION DENIED


                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-521813
                                  Motion No. 445331


        RELEASED DATE:                      June 27, 2011
FOR APPELLANT

Joseph Huber, Pro Se
Inmate No. A574800
Trumbull Correctional Institution
P. O. Box 901
Leavittsburg, OH 44430

ATTORNEY FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Daniel T. Van
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




KATHLEEN ANN KEOUGH, J.:

     {¶ 1} Joseph Huber has filed an application for reopening pursuant to

App.R. 26(B).   Huber is attempting to reopen the appellate judgment, as

rendered in State v. Huber, Cuyahoga App. No. 93923, 2011-Ohio-62, which

affirmed his conviction for two counts of aggravated robbery, one count of

kidnapping, and one count of attempted felonious assault, but remanded for

resentencing. We decline to reopen Huber’s appeal.

     {¶ 2} App.R. 26(B)(2)(b) requires that Huber establish “a showing of

good cause for untimely filing if the application is filed more than 90 days
after journalization of the appellate judgment,” which is subject to reopening.

 The Supreme Court of Ohio, with regard to the 90-day deadline as provided

by App.R. 26(B)(2)(b), has firmly established that:

      {¶ 3} “We now reject [applicant’s] claim that those excuses gave him

good cause to miss the 90-day deadline in App.R. 26(B).         The rule was

amended to include the 90-day deadline more than seven months before

[applicant’s] appeal of right was decided by the court of appeals in February

1994, so the rule was firmly established then, just as it is today. Consistent

enforcement of the rule’s deadline by the appellate courts in Ohio

protects on the one hand the state’s legitimate interest in the finality

of its judgments and ensures on the other hand that any claims of

ineffective assistance of appellate counsel are promptly examined

and resolved.

      {¶ 4} “Ohio and other states ‘may erect reasonable procedural

requirements for triggering the right to an adjudication,’ Logan v.

Zimmerman Brush Co. (1982), 455 U.S. 422, 437, 102 S.Ct. 1148, 71

L.Ed. 2d 265, and that is what Ohio has done by creating a 90-day

deadline for the filing of applications to reopen. [Applicant] could have

retained new attorneys after the court of appeals issued its decision in 1994,

or he could have filed the application on his own. What he could not do was

ignore the rule’s filing deadline. * * * The 90-day requirement        in the
rule is ‘applicable to all appellants,’ State v. Winstead (1996), 74 Ohio

St.3d 277, 278, 658 N.E.2d 722, and Gumm offers no sound reason why

he – unlike so many other Ohio criminal defendants – could not

comply with that fundamental aspect of the rule.” (Emphasis added.)

State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, at ¶7.

See, also, State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d

970; State v. Cooey, 73 Ohio St.3d 411, 1995-Ohio-328, 653 N.E.2d 252; State

v. Reddick, 72 Ohio St.3d 88, 1995-Ohio-249, 647 N.E.2d 784.

     {¶ 5} Herein, Huber is attempting to reopen the appellate judgment

that was journalized on January 13, 2011. The application for reopening was

not filed until June 14, 2011, more than 90 days after journalization of the

appellate judgement in State v. Huber, supra. Huber, in an attempt to show

“good cause” for the untimely filing of his application for reopening, argues

“because all of the Appellant’s proper legal documentations are in Trumbull

prison and he is currently in Cuyahoga County Jail pending resentencing and

was not informed immediately of [the] decision.”

     {¶ 6} Lack of knowledge or ignorance of the time constraint, applicable

to an application for reopening per App.R. 26(B), does not provide sufficient

cause for untimely filing. State v. Klein (Mar. 28, 1991), Cuyahoga App. No.

58389, reopening disallowed (Mar. 15, 1994), Motion No. 249260, affirmed

(1994), 69 Ohio St.3d 1481; State v. Trammell (July 13, 1995), Cuyahoga App.
No. 67834, reopening disallowed (Apr. 22, 1996), Motion No. 270493; State v.

Travis (Apr. 5, 1990), Cuyahoga App. No. 56825, reopening disallowed (Nov.

2, 1994), Motion No. 251073, affirmed (1995), 72 Ohio St.3d 317. See, also,

State v. Torres, Cuyahoga App. No. 86530, 2007-Ohio-3696, reopening

disallowed (Jan. 3, 2007), Motion No, 390254; State v. Gaston (Feb. 7. 2002),

Cuyahoga App. No. 79626, reopening disallowed (Jan 17,2007), Motion No.

391555. In addition, reliance upon appellate counsel does not establish good

cause for untimely filing an application for reopening. State v. White (Jan.

31, 1991), Cuyahoga App. No. 57944, reopening disallowed (Oct. 19, 1994),

Motion No. 249174; State v. Allen (Nov. 3, 1994), Cuyahoga App. No. 65806,

reopening disallowed (July 8, 1996), Motion No. 267054. See, also, State v.

Moss (May 13, 1993), Cuyahoga App. Nos. 62318 and 62322, reopening

disallowed (Jan. 16, 1997), Motion No. 275838; State v. McClain (Aug. 3,

1995), Cuyahoga App. No. 67785, reopening disallowed (Apr. 15, 1997),

Motion No. 276811; State v. Russell (May 9, 1996), Cuyahoga App. No. 69311,

reopening disallowed (June 16, 1997), Motion No. 282351. Finally, difficulty

in obtaining a transcript or limited access to legal materials does not

establish good cause for the untimely filing of an application for reopening.

State v. Houston, 73 Ohio St.3d 346, 1995-Ohio-317, 652 N.E.2d 1018; State v.

Lawson, Cuyahoga App. No. 84402, 2005-Ohio-880, reopening disallowed

2006-Ohio-3939, Motion No. 374913; State v. Alexander, Cuyahoga App. No.
81529, 2004-Ohio-3861, reopening disallowed 2004-Ohio-3861, Motion No.

353061; and State v. Sanchez (June 9. 1994), Cuyahoga App. No. 62796, reopening

disallowed (Aug. 16, 2001), Motion No. 23717.   Herein, Huber has failed to establish

“a showing of good cause” for the untimely filing of his application for

reopening, as premised upon a lack of knowledge, reliance upon his attorney,

difficultly in

      {¶ 7} obtaining a transcript, and limited access to legal materials.

      {¶ 8} Accordingly, the application for reopening is denied.




KATHLEEN ANN KEOUGH, JUDGE

PATRICIA ANN BLACKMON, P.J., and
MARY J. BOYLE, J., CONCUR
