[Cite as State v. Williams, 2014-Ohio-1053.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 99294



                                       STATE OF OHIO

                                                           PLAINTIFF-APPELLEE

                                                     vs.

                            THOMAS B. WILLIAMS, III
                                                           DEFENDANT-APPELLANT




                                        JUDGMENT:
                                    APPLICATION DENIED


                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-12-562386-A
                                    Application for Reopening
                                       Motion No. 469834


                RELEASE DATE:                  March 18, 2014
FOR APPELLANT

Thomas B. Williams, III, pro se
Mansfield Correctional Institution
P.O. Box 788
Mansfield, OH 44901



ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: John D. Kirkland
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} Thomas B. Williams, III has filed a timely application for reopening pursuant

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

State v. Williams, 8th Dist. Cuyahoga No. 99294, 2013-Ohio-3532, that affirmed his

conviction for the offense of felonious assault. We decline to grant the application for

reopening.

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

Williams 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, 1996-Ohio-21, 660 N.E.2d 456.              Specifically,

Williams 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, 1998-Ohio-704,701 N.E.2d 696.

       Strickland charges us to “appl[y] a heavy measure of deference to counsel’s
       judgments,” 466 U.S. 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, 104 S.Ct. 2052, 80
       L.Ed. 674. 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. Sander, 94 Ohio St.3d 150, 761 N.E.2d 18 (2002).
Smith at ¶ 7.

       {¶4} In addition, the Supreme Court of Ohio, in State v. Spivey, 84

Ohio St.3d 24, 1998-Ohio-704, 701 N.E.2d 696, 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 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. Grimm, 73 Ohio St.3d 413, 1995-Ohio-24, 653 N.E.2d 253; State v. Campbell, 69 Ohio

St.3d 38, 1994-Ohio-492, 630 N.E.2d 339.

       {¶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} Williams’s sole proposed assignment of error, in support of his claim of

ineffective assistance of appellate counsel, is that:

       Defendant was denied effective [a]ssistance of [c]ounsel when [trial
       counsel] failed to properly examine each of the state’s witnesses regarding
       their credibility, their internal inconsistency, and their conflicting testimony
       with each other’s testimonies.

       {¶8} Williams, through his sole proposed assignment of error, essentially argues

that his conviction was against the manifest weight of the evidence.             Specifically,

Williams argues that the trier of fact clearly lost its way based upon the credibility of the

state’s witnesses, inconsistent testimony, and conflicting testimony.

       {¶9} Williams’s sole assignment of error is barred from further review by the

doctrine of res judicata. See generally State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d

104 (1967).    The Supreme Court of Ohio has also established that a claim of ineffective

assistance of appellate counsel may be barred from further review, in an App.R. 26(B)

application for reopening, by the doctrine of res judicata. State v. Murnahan, 63 Ohio

St.3d 60, 584 N.E.2d 1204 (1992).
       {¶10} The issue of manifest weight was previously raised and argued on direct

appeal. This court held that:

       Williams next argues that his conviction is against the manifest weight of
       the evidence. A manifest weight of the evidence standard of review
       requires a reviewing court to examine the record as a whole and weigh the
       evidence, all reasonable inferences, consider the credibility of the witnesses,
       and determine whether, in resolving evidentiary conflicts, the trier of fact
       clearly lost its way and created such a manifest miscarriage of justice that
       the conviction must be reversed and a new trial ordered. State v. King, 8th
       Dist. Cuyahoga No. 98234, 2013-Ohio-574, citing State v. Otten, 33 Ohio
       App.3d 339, 515 N.E.2d 1009 (9th Dist.1986).

       According to Williams, none of the trial witnesses could say with absolute
       certainty that he was the person who kicked the victim. Williams further
       claims that the victim in this case was too distraught to give an accurate
       account of the events of the day, and that all other witnesses called by the
       state are equally unreliable because they never actually saw the attack
       occur. * * *

       We find, however, that there is an overwhelming amount of evidence
       indicating Williams is the assailant. Several witnesses placed Williams on
       the church’s property the day of the incident. Police investigating the
       scene interviewed a woman living in a house neighboring the church where
       the assailant was seen. She identified the assailant by the name “Tommy.”
        Williams was also identified by the victim as well as the teenager involved
       in the verbal altercation. Both of these witnesses were in a position to see
       the assailant at close range. Other witnesses were able to place Williams
       in the neighborhood and described his demeanor as agitated. Williams’s
       clothing matched the description of that worn by the assailant, and he was
       found in walking distance of the church. After viewing the record, we
       cannot agree that the jury lost its way by finding that the evidence presented
       was competent and credible enough to warrant a conviction.

Williams at ¶ 11.

       {¶11} Consideration of Williams’s sole assignment of error,           premised upon

credibility of the witnesses, inconsistent testimony, and conflicting testimony, would not

have resulted in a different outcome on appeal.    Thus, Williams was not deprived of the
guarantee of effective assistance of appellate counsel and has failed to establish a basis

for the reopening of his original appeal. State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d

1128 (1985); Vaugh v. Maxwell, 2 Ohio St.2d 299, 209 N.E.2d 164 (1965).

      {¶12} Application denied.




MELODY J. STEWART, JUDGE

KENNETH J. ROCCO, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
