[Cite as State v. Mays, 2014-Ohio-814.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99150


                                      STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                 vs.

                                      TRACY R. MAYS
                                                        DEFENDANT-APPELLANT




                                       JUDGMENT:
                                   APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-559249
                                   Application for Reopening
                                      Motion No. 470297

        RELEASE DATE:               February 28, 2014
FOR APPELLANT

Tracy Mays, pro se
P.O. Box 231
Centralia, Illinois 62801


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Andrew Rogalski
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

      {¶1} Tracy R. Mays has filed a timely application for reopening pursuant to

App.R. 26(B). Mays is attempting to reopen the appellate judgment, rendered in State v.

Mays, 8th Dist. Cuyahoga No. 99150, 2013-Ohio-4031, that affirmed his conviction for

the offense of domestic violence. For the following reasons, we decline to grant the

application for reopening.

      {¶2} In order to establish a claim of ineffective assistance of appellate counsel,

Mays must demonstrate that appellate counsel’s performance was deficient and that, but

for the deficient performance, the result of his appeal would have been different. State v.

Reed, 74 Ohio St.3d 534, 660 N.E.2d 456 (1996). Specifically, Mays must establish that

“there is a genuine issue as to whether he was deprived of the effective assistance of

counsel on appeal.” App.R. 26(B)(5).

      {¶3} In State v. Smith, 95 Ohio St.3d 127, 2002-Ohio-1753, 766 N.E.2d 588, the

Supreme Court of Ohio held that:

      Moreover, to justify reopening his appeal, [applicant] “bears the burden of
      establishing that there was a ‘genuine issue’ as to whether he has a
      ‘colorable claim’ of ineffective assistance of counsel on appeal.” State v.
      Spivey, 84 Ohio St.3d 25, 701 N.E.2d 696 (1998).

      Strickland charges us to “appl[y] a heavy measure of deference to counsel’s
      judgments,” [Strickland v. Washington] 466 U.S. [668] at 691, 104 S.Ct.
      2052, 80 L.Ed.2d 674, and to “indulge a strong presumption that counsel’s
      conduct falls within the wide range of reasonable professional assistance,”
      id. at 689. Moreover, we must bear in mind that appellate counsel need not
      raise every possible issue in order to render constitutionally effective
      assistance. See Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d
      987 (1983); State v. Sanders, 94 Ohio St.3d 150, 761 N.E.2d 18 (2002).
Smith at ¶ 7.

       {¶4} In addition, in State v. Spivey, the Supreme Court of Ohio, held that:

       In State v. Reed (1996), 74 Ohio St.3d 534, 535, 660 N.E.2d 456, 458, we
       held that the two-prong analysis found in Strickland v.Washington (1984),
       466 U.S. 668, 104 S.Ct 2052, 80 L.Ed 674, is the appropriate standard to
       assess a defense request for reopening reopening under App.R. 26(B)(5).
       [Applicant] must prove that his counsel were deficient for failing to raise
       the issues he now presents, as well as showing that had he presented those
       claims on appeal, there was a “reasonable probability” that he would have
       been successful. Thus [applicant] bears the burden of establishing that
       there was a “genuine issue” as to whether he has a “colorable claim” of
       ineffective assistance of counsel on appeal.

Id.

       {¶5} It is well settled that appellate counsel is not required to raise and argue

assignments of error that are meritless. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308,

77 L.Ed.2d 987 (1983). Appellate counsel cannot be considered ineffective for failing to

raise every conceivable assignment of error on appeal. Jones v. Barnes, supra; State v.

Gumm, 73 Ohio St.3d 413, 653 N.E.2d 253 (1995); State v. Campbell, 69 Ohio St.3d 38,

630 N.E.2d 339 (1994).

       {¶6} In Strickland, the United States Supreme Court also stated that a court’s

scrutiny of an attorney’s work must be deferential. The court further stated that it is too

tempting for a defendant-appellant to second-guess his attorney after conviction and

appeal and that it would be all too easy for a court to conclude that a specific act or

omission was deficient, especially when examining the matter in hindsight. Accordingly,

“a court must indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered

sound trial strategy.” Id. at 689. Finally, the United States Supreme Court has upheld

the appellate attorney’s discretion to decide which issues he or she believes are the most

fruitful arguments and the importance of winnowing out weaker arguments on appeal and

focusing on one central issue or at most a few key issues. Jones v. Barnes, supra.

       {¶7} In the case sub judice, Mays raises three proposed assignments of error in

support of his App.R. 26(B) application for reopening. Initially, we find that Mays has

failed to comply with App.R. 26(B)(4) because his application for reopening exceeds the

ten-page limitation. This procedural defect provides sufficient grounds for dismissing

the application for reopening.      State v. Harris, 8th Dist. Cuyahoga No. 94388,

2011-Ohio-4403, ¶ 2; see also State v. Peeples, 71 Ohio St.3d 349, 643 N.E.2d 1112

(1994) (affirming denial of application to reopen for reasons that included failure to

comply with the ten-page limit of the rule.) Likewise, the affidavit attached to the

application for reopening does not set forth the basis for his claim of ineffective

assistance of appellate counsel or “the manner in which the deficiency prejudicially

affected the outcome of the appeal * * *.” App.R. 26(B)(2)(d).

       {¶8} Mays, through his initial proposed assignment of error, argues that R.C.

2919.25, which defines the offense of domestic violence, is unconstitutional because it

creates a quasi-marital relationship in violation of Section 11, Article XV (the Defense of

Marriage Amendment) to the Ohio Constitution. The Supreme Court of Ohio, however,
in State v. Carswell, 114 Ohio St.3d 210, 2007-Ohio-3723, 871 N.E.2d 547, ¶ 37, has

declared that:

       We hold, therefore that the term “person living as a spouse” as defined in
       R.C. 2919.25 merely identifies a particular class of persons for the purpose
       of the domestic-violence statutes. It does not create or recognize a legal
       relationship that approximates the designs, qualities, or significance of
       marriage as prohibited by Section 11, Article XV of the Ohio Constitution.
       * * *. Thus, R.C. 2919.25 is not unconstitutional and does not create a
       quasi-marital relationship in violation of Section 11, Article XV of the Ohio
       constitution.

       {¶9} Thus, Mays’s first proposed assignment of error does not provide a basis for

reopening.

       {¶10} Mays recites two additional proposed assignments of error that deal with the

issues of a psychiatric evaluation and suppressed evidence that would have allegedly

resulted in the dismissal of the charge of domestic violence. Mays fails to demonstrate

the prejudice involved with regard to the second and third proposed assignments of error

and also fails to demonstrate the prejudice that occurred as a result of appellate counsel’s

failure to argue the proposed assignments of error on appeal. The mere recitation of a

proposed assignment of error is not sufficient to meet an applicant’s burden of

establishing that his appellate counsel was deficient and that there existed a reasonable

probability that he would have been successful if counsel had presented those claimed

errors on appeal. State v. Hawkins, 8th Dist. Cuyahoga No. 90704, 2008-Ohio-6475,

reopening disallowed, 2009-Ohio-2246; State v. Harris, 8th Dist. Cuyahoga No. 90699,

2008-Ohio-5873, reopening disallowed, 2009-Ohio-5962. As a consequence, Mays’s

second and third proposed assignments of error do not provide a basis for reopening.
     {¶11} Accordingly, the application for reopening is denied.




EILEEN T. GALLAGHER, JUDGE

MARY J. BOYLE, A.J., and
SEAN C. GALLAGHER, J., CONCUR
