                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                            File Name: 04a0426p.06

                         UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                              X
                                      Petitioner-Appellant, -
 RAFAEL DEITZ,
                                                               -
                                                               -
                                                               -
                                                                   No. 03-3431
             v.
                                                               ,
                                                                >
 CHRISTINE MONEY,                                              -
                                     Respondent-Appellee. -
                                                             N
                              Appeal from the United States District Court
                             for the Northern District of Ohio at Cleveland.
                            No. 02-00641—Donald C. Nugent, District Judge.
                                      Submitted: September 24, 2004
                                 Decided and Filed: December 13, 2004
                      Before: MERRITT, MOORE, and GILMAN, Circuit Judges.
                                            _________________
                                                 COUNSEL
ON BRIEF: Alan C. Rossman, Cleveland, Ohio, for Appellant. Bruce D. Horrigan, CORRECTIONS
LITIGATION SECTION, Cleveland, Ohio, for Appellee. Francis R. Krajenke, Jr., Cleveland, Ohio, for
Amicus Curiae.
                                            _________________
                                                OPINION
                                            _________________
        RONALD LEE GILMAN, Circuit Judge. Rafael Deitz filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2254, challenging the constitutionality of his 1997 conviction for drug trafficking. His
petition was denied by the district court. The primary issue on appeal is whether Deitz’s claim that he was
denied the effective assistance of counsel is procedurally defaulted and therefore not reviewable. For the
reasons set forth below, we VACATE the judgment of the district court and REMAND the case for further
proceedings consistent with this opinion.
                                            I. BACKGROUND
         In May of 1996, a Lorain County, Ohio grand jury returned an 11-count indictment for drug
trafficking and related offenses against Deitz, a foreign national from Mexico. He pled guilty to all counts
in the indictment on February 11, 1997 and, on the same day, was sentenced to a total term of 22 years to
life in prison. Two weeks later, Deitz wrote a letter to his trial counsel, asserting his innocence and seeking
to retract his guilty plea. According to his brief, Deitz “wanted to appeal his sentence and the conduct of
his counsel.” His attorney did not file an appeal. Instead, the attorney filed a motion to modify Deitz’s

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No. 03-3431             Deitz v. Money                                                                    Page 2


sentence on March 20, 1997, which was denied by the state trial court for “lack of jurisdiction.” More than
a year later, Deitz filed a pro se motion to withdraw his guilty plea. The trial court denied his motion on
September 18, 1998, finding “little, if any, merit in Defendant’s documentation and arguments.”
       In October of 1998, Deitz, again acting pro se, appealed the lower court’s refusal to grant his request.
The Ohio Court of Appeals affirmed the lower court’s dismissal, noting that “[b]ecause the motion is based
upon the alleged violations of [Deitz’s] constitutional rights, it is most properly considered as a petition for
postconviction relief,” and that “[w]hen a direct appeal is not taken from a judgment, a petition for
postconviction relief must be filed no later than one hundred eighty days after the time for filing the notice
of appeal expires.”
        Deitz, with new counsel, filed a motion for leave to file a delayed appeal in February of 2001, and
also sought to reopen his direct appeal. Both requests were denied by the Ohio Court of Appeals. The Ohio
Supreme Court dismissed the case several months later, concluding that it did not involve a substantial
constitutional question.
       On April 5, 2002, Deitz filed his petition for a writ of habeas corpus. He raised the following four
grounds for relief: (1) his trial counsel was ineffective for failing to file a direct appeal; (2) his appellate
counsel was ineffective for not raising a winning issue on appeal; (3) the trial court denied him the due
process of law by failing to advise him of the potential deportation consequences of his guilty plea, as
required by Ohio law; and (4) the Ohio Court of Appeals violated his due process rights by summarily
denying his motion for leave to file a delayed appeal.
        Based upon the Report and Recommendation of the magistrate judge, who found that all four claims
were procedurally defaulted, the district court dismissed the petition. This court then granted Deitz’s motion
for a certificate of appealability with respect to the following issue: whether Deitz was denied the effective
assistance of counsel by his attorney’s failure to file a direct appeal. The warden responds by arguing that
this issue was not fairly presented to the state court for review on the merits and is therefore procedurally
barred.
                                                II. ANALYSIS
A.      Standard of review
        This court reviews a district court’s conclusions of law de novo, but will not set aside its factual
findings unless they are clearly erroneous. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999). The district
court’s determination regarding procedural default and its resolution of whether “cause and prejudice” exist
to excuse the default are also subject to de novo review. Id.
B.      Deitz’s claim of ineffective assistance of counsel
        A federal court will not address a habeas petitioner’s federal constitutional claim unless the
petitioner has first fairly presented the claim to the state courts. Hannah v. Conley, 49 F.3d 1193, 1196 (6th
Cir. 1995). Fair presentation of a federal constitutional issue to a state court requires that the issue be raised
by direct citation to federal cases employing constitutional analysis or to state cases relying on constitutional
analysis in cases with similar fact patterns. Id.
         A federal court is also barred from hearing issues that could have been raised in the state courts, but
were not, and now may not be presented to the state courts due to a procedural defect or waiver.
Wainwright v. Sykes, 433 U.S. 72, 87 (1977). In order to gain access to a habeas review of a waived claim,
a petitioner must demonstrate either (1) cause to excuse the waiver and prejudice to his defense or (2) actual
innocence. Murray v. Carrier, 477 U.S. 478, 495-96 (1986).
No. 03-3431             Deitz v. Money                                                                   Page 3


        We consider four factors in determining whether a petitioner’s claim is precluded by the failure to
observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). First, we decide
whether there is a firmly established state procedural rule with which the petitioner failed to comply. Id.;
see also Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (holding that a state procedural rule that is not
“firmly established and regularly followed” cannot serve to bar federal judicial review). Second, we ask
whether the state court actually enforced the rule in sanctioning the petitioner’s failure to comply. Maupin,
785 F.2d at 138; see also Boyle v. Million, 201 F.3d 711, 716-17 (6th Cir. 2000) (holding that where a state
appellate court characterizes its earlier decision as substantive, the earlier decision did not rely on a
procedural bar). We next consider whether the petitioner’s failure to comply with the state procedural rule
constitutes an adequate and independent ground for barring federal review. Maupin, 785 F.2d at 138; see
also Wainright, 433 U.S. at 86-87 (concluding that, in light of a Florida law requiring that a petitioner’s
confession be challenged at trial or not at all, the failure to timely object to such an admission amounted to
an adequate and independent state ground that precluded review in a habeas proceeding). Finally, we must
determine whether the petitioner has demonstrated that there was cause to disregard the procedural rule and
whether the petitioner was actually prejudiced by the alleged constitutional error. Maupin, 785 F.2d at 138;
see also Coleman v. Thompson, 501 U.S. 722, 750-51 (1991) (holding that a procedurally defaulted
petitioner must show cause for the default and prejudice as a result of the violation, or the petitioner must
demonstrate that failure to consider the claim will result in a miscarriage of justice).
        Attorney error does not constitute cause to excuse a procedural default unless counsel’s performance
was constitutionally deficient. Strickland v Washington, 466 U.S. 668 (1984). The Strickland standard
requires a defendant to show that (1) counsel’s representation fell below an objective standard of
reasonableness, and (2) counsel’s deficient performance prejudiced the defendant. Id. at 688, 694. A claim
of ineffective assistance of counsel must be presented to the state courts as an independent claim before it
may be used to establish cause for a procedural default. Edwards v. Carpenter, 529 U.S. 446, 452 (2000).
Although an ineffective-assistance-of-counsel claim can itself be procedurally defaulted, the procedural
default may be excused “if the prisoner can satisfy the cause-and-prejudice standard with respect to that
claim.” Id. at 453 (emphasis in original).
       Dietz filed both a motion to reopen his direct appeal, pursuant to Rule 26(B) of the Ohio Rules of
Appellate Procedure, and a motion for leave to file a delayed appeal, pursuant to Rule 5(A) of the Ohio
Rules of Appellate Procedure. Rule 26(B) provides as follows:
       A defendant in a criminal case may apply for reopening of the appeal from the judgment of
       conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An
       application for reopening shall be filed in the court of appeals where the appeal was decided
       within ninety days from the journalization of the appellate judgment unless the applicant
       shows good cause for filing at a later time.
         The Ohio Court of Appeals initially granted Deitz’s application to reopen, ruling that he had
presented “a genuine issue that counsel was ineffective in his representation of Appellant on appeal.”
Subsequent to full briefing, however, the court reversed itself and dismissed Deitz’s appeal on procedural
grounds. The court ruled that it was prevented from considering his arguments because no appeal had
initially been filed and thus there was no appeal to reopen, given that the court had denied his request to file
a delayed appeal. It did not explain why it had initially granted Deitz’s application. In any event, the Ohio
Supreme Court has recently held that the reopening of an appeal based on a claim of ineffective assistance
of appellate counsel is a collateral postconviction proceeding and not part of the direct appeal process.
Morgan v. Eads, ___ N.E.2d ___, 2004 WL 2674852 (Ohio Nov. 19, 2004).
       The other applicable provision is Rule 5(A), which reads as follows:
       After the expiration of the thirty day period provided by App.R 4(A) for the filing of a notice
       of appeal as of right, an appeal may be taken by a defendant with leave of the court to which
No. 03-3431             Deitz v. Money                                                                    Page 4


       the appeal is taken in . . . criminal proceedings . . . . 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.
The Ohio Court of Appeals denied Deitz’s motion for leave to file a delayed appeal because he “failed to
set forth sufficient reasons for having failed to perfect a timely appeal.” Deitz’s failure to file a timely
appeal presumptively constitutes an adequate and independent ground for barring federal review, unless he
can demonstrate cause to disregard the procedural rule and prejudice to his defense.
        As cause for his default, Deitz claims ineffective assistance of trial and appellate counsel. Under
the Strickland standard, the failure of Deitz’s attorneys to file a timely appeal on his behalf, despite his
purported request that they do so, would fall below an objective standard of reasonableness. See Roe v.
Flores-Ortega, 528 U.S. 470, 480 (2000) (holding that counsel has a constitutionally imposed duty to
consult with the defendant about an appeal when there is reason to think that either (1) a rational defendant
would want to appeal or (2) this particular defendant reasonably demonstrated to counsel that he was
interested in appealing). This court has held that the failure to perfect a direct appeal, in derogation of a
defendant’s actual request, is a per se violation of the Sixth Amendment. Ludwig v. United States, 162 F.3d
456, 459 (6th Cir. 1998). The Ludwig court added that the prejudice component of the Strickland analysis
is inapplicable because prejudice is presumed:
       A lawyer’s failure to file a requested appeal at the behest of a defendant is particularly
       problematic because it does not merely deprive the defendant of effective assistance of
       counsel, it deprives him of the assistance of counsel altogether. Thus, the failure to perfect
       a direct appeal when requested by the defendant violates the Sixth Amendment without
       regard to the probability of success on appeal.
Id.
         Despite the potential merit of Deitz’s claim of ineffective assistance of counsel, he can establish
cause for his procedural default only if the claim itself is not procedurally defaulted. Edwards v. Carpenter,
529 U.S. 446, 453 (2000). We note that Edwards itself arose from the Sixth Circuit. In Edwards, this court
held that the “respondent’s ineffective-assistance-of-counsel claim served as ‘cause’ to excuse the
procedural default of his sufficiency-of-the-evidence claim, whether or not the ineffective-assistance claim
itself had been procedurally defaulted.” Id. at 450. The Supreme Court reversed, stating that
       the purposes of the exhaustion requirement . . . would be utterly defeated if the prisoner were
       able to obtain federal habeas review simply by “letting the time run” so that state remedies
       were no longer available. Those purposes would be no less frustrated were we to allow
       federal review to a prisoner who had presented his claim to the state court, but in such a
       manner that the state court could not, consistent with its own procedural rules, have
       entertained it.
Id. at 453 (emphasis in original). The Court added that, on remand, “the Sixth Circuit may conclude . . . that
Ohio Rule of Appellate Procedure 26(B) does not constitute an adequate ground to bar federal habeas
review of the ineffective-assistance claim.” Id. at 453.
        We need not reach the issue of whether the Ohio Court of Appeals properly rejected Deitz’s motion
pursuant to Rule 26(B), however, because we conclude that the state court’s refusal to allow him to file a
delayed appeal under Rule 5(A) does not constitute an “adequate” ground to bar habeas review. See Maupin
v. Smith, 785 F.2d 135, 138 (6th Cir. 1986) (holding that a procedural forfeiture must be based on an
“adequate and independent” ground on which the state can rely to foreclose review of a federal
constitutional claim). The district court denied Deitz’s motion because he “failed to set forth sufficient
reasons for having failed to perfect a timely appeal.” But Rule 5(A) does not specify the criteria the courts
No. 03-3431              Deitz v. Money                                                                    Page 5


should use in determining whether to grant a delayed appeal. Instead, it simply requires that the defendant
set forth the reasons for the failure to perfect an appeal of right.
        The 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. State v. Fisher, 517 N.E.2d 911, 914 (Ohio 1988). A rule that
grants such discretion to the courts is not “firmly established and regularly followed” so as to be adequate
within the meaning of Maupin. See Hutchison v. Bell, 303 F.3d 720, 738 (6th Cir. 2002) (ruling that a
Tennessee procedure was adequate for purposes of enforcing a procedural bar because “Tennessee’s due
process exception does not grant unfettered discretion to state courts in applying procedural default rules.”).
        The Magistrate’s Report and Recommendation makes much of the fact that Deitz waited four years
before raising the issue of ineffective assistance of counsel in his motion to file a delayed appeal. But Rule
5(A) does not set a time limit for the filing of a delayed appeal. Although some Ohio courts have refused
to grant motions for leave to file a delayed appeal because of the undue lapse of time, others have allowed
appeals long after the time for filing a direct appeal has expired. Compare State v. Robinson, No. 04AP-
713, 2004 WL 1945687 (Ohio Ct. App. Sept. 2, 2004) (unpublished) (holding that a three-and-a-half-year
delay in filing a motion was unreasonable), with State v. Simmons, No. 69238, 1997 WL 83124 (Ohio Ct.
App. Feb. 27, 1997) (unpublished) (noting that a motion to file a delayed appeal had been granted in the
case more than five years after the defendant pled guilty).
         We therefore conclude that Deitz has set forth sufficient reasons for his failure to file a direct appeal.
Deitz’s memorandum in support of his motion for the filing of a delayed appeal describes in considerable
detail his claim of ineffective assistance of counsel and, as noted earlier, an attorney’s failure to file a
requested appeal constitutes a per se violation of the Sixth Amendment. Given that Dietz’s claim of
ineffective assistance of counsel is not procedurally defaulted, that he has alleged facts that can establish
cause for his failure to file a direct appeal, and that prejudice would be presumed, he is entitled to habeas
relief if he can in fact prove that he asked his attorney to file a timely appeal and that the attorney failed to
do so.
        Both Deitz and the Mexican government, as amicus curiae, have also argued that Deitz’s attorney
provided ineffective assistance of counsel by failing to raise a number of issues relating to his Mexican
citizenship. Specifically, they claim that his attorney should have raised the authorities’ failure to
(1) provide an interpreter for Deitz during the taking of his plea, (2) advise Deitz of the potential
immigration consequences of a guilty plea, which is required by Ohio Rev. Code § 2953.031, and (3) notify
Deitz of his right to contact the Mexican consulate, which is required by Article 36 of the Vienna
Convention of Consular Relations. On remand, the district court should consider whether the failure of
Deitz’s attorney to raise these issues deprived him of the effective assistance of counsel, in addition to
making its findings as to whether Dietz asked his attorney to file a timely appeal and whether the attorney
failed to do so.
        We note as a final point that, in sending the case back to the district court to rule on the merits of
the ineffective-assistance-of-counsel claim, we are not requiring that the claim first be exhausted in the Ohio
state courts. In light of the fact that the state courts have already ruled that they will no longer hear Deitz’s
appeals or post-conviction petitions, any attempts by Deitz to exhaust his state-court remedies would be
futile. Section 2254(b)(1)(B)(i) excuses exhaustion when “there is an absence of available state corrective
process.” Here, state remedies are no longer available to Deitz, and we have determined that his case is not
barred by procedural default. The district court should therefore reach the ineffective-assistance-of-counsel
claim on the merits.
                                             III. CONCLUSION
        For all of the reasons set forth above, we VACATE the judgment of the district court and REMAND
the case for further proceedings consistent with this opinion.
