[Cite as State v. Carter, 2011-Ohio-6256.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 94967




                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                             vs.

                                  MICHAEL CARTER
                                                   DEFENDANT-APPELLANT




                                    JUDGMENT:
                                APPLICATION DENIED


                           Cuyahoga County Common Pleas Court
                                   Case No. CR-528720
                                Application for Reopening
                               Motion No. 448561


     RELEASE DATE: December 2, 2011

FOR APPELLANT

Michael Carter
Inmate No. 582-874
Mansfield Correctional Inst.
P. O. Box 788
Mansfield, OH 44901

ATTORNEY FOR RESPONDENT

William D. Mason
Cuyahoga County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, OH 44113

SEAN C. GALLAGHER, J.:

     {¶ 1} In State v. Carter, Cuyahoga County Court of Common Pleas

     Case No. CR-528720, the trial court found applicant, Michael Carter,

     guilty of gross sexual imposition and unlawful sexual conduct with a

     minor. This court affirmed that judgment in State v. Carter, Cuyahoga

     App. No. 94967, 2011-Ohio-2658.

     {¶ 2} Carter has filed with the clerk of this court an application for

     reopening. He asserts that he was denied the effective assistance of

     appellate counsel because his appellate counsel did not assign as error

     that trial counsel was ineffective; the state introduced evidence of his
prior convictions and juvenile court proceedings; and there was

insufficient evidence and the judgment was contrary to the manifest

weight of the evidence. We deny the application for reopening. As

required by App.R. 26(B)(6), the reasons for our denial follow.

{¶ 3} Initially, we note that App.R. 26(B)(1) provides, in part:     “An

application for reopening shall be filed *** within ninety days from

journalization of the appellate judgment unless the applicant shows

good cause for filing at a later time.” App.R. 26(B)(2)(b) requires that

an application for reopening include “a showing of good cause for

untimely filing if the application is filed more than ninety days after

journalization of the appellate judgment.”

{¶ 4} This   court’s decision affirming applicant's conviction was

journalized on June 2, 2011. The application was filed on October 14,

2011, clearly in excess of the ninety-day limit.

{¶ 5} Carter avers that he has good cause for the untimely filing of his

application for reopening because the prison librarian was on vacation

and then ill from August 14, 2011 through September 9, 2011, as well

as another seven days through September 25, 2011.           Additionally,

when the librarian was available, the librarian was not able to print

documents for inmates’ legal research.

{¶ 6} That is, Carter contends that his limited access to library
resources establishes good cause for his untimely filing of the

application for reopening. “[T]he courts have rejected the claim that

limited access to legal materials states good cause for untimely filing.

Prison riots, lockdowns, and other library limitations have been

rejected as constituting good cause. State v. Tucker, 73 Ohio St.3d 152,

1995-Ohio-2; State v. Kaszas (Sept. 21, 1998), Cuyahoga App. Nos.

72547 and 72547, reopening disallowed (Aug. 14, 2000), Motion No.

316752; State v. Hickman (Apr. 30, 1998), Cuyahoga App. No. 72341,

reopening disallowed (Dec. 13, 2000), Motion No. 320830 and State v.

Turner (Nov. 16, 1989), Cuyahoga App. No. 55960, reopening disallowed

(Aug. 20, 2001), Motion No. 323221.” State v. Wynn, Cuyahoga App.

No. 94967, 2010-Ohio-5469, ¶3.

{¶ 7} The Supreme Court has upheld judgments denying applications

for reopening solely on the basis that the application was not timely

filed and the applicant failed to show “good cause for filing at a later

time.” App.R. 26(B)(1). See, e.g., State v. Gumm, 103 Ohio St.3d 162,

2004-Ohio-4755, 814 N.E.2d 861; State v. LaMar, 102 Ohio St.3d 467,

2004-Ohio-3976, 812 N.E.2d 970. Carter’s failure to demonstrate good

cause is a sufficient basis for denying the application for reopening.

See, also, State v. Collier (June 11, 1987), Cuyahoga App. No. 51993,

reopening disallowed 2005-Ohio-5797, Motion No. 370333; State v.
     Garcia (July 8, 1999), Cuyahoga App. No. 74427, reopening disallowed

     2005-Ohio-5796, Motion No. 370916.

     {¶ 8} As a consequence, Carter has not met the standard for reopening.

     Accordingly, the application for reopening is denied.




SEAN C. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
KENNETH A. ROCCO, J., CONCUR
