       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206             2    Lopez v. Wilson                             No. 01-3875
    ELECTRONIC CITATION: 2004 FED App. 0020P (6th Cir.)
                File Name: 04a0020p.06                     Thomas Price, OFFICE OF THE ATTORNEY GENERAL
                                                           OF OHIO, Columbus, Ohio, for Appellee.
UNITED STATES COURT OF APPEALS                               SUHRHEINRICH, J., delivered the opinion of the court, in
                                                           which ROGERS, J., joined. COLE, J. (p. 19), delivered a
              FOR THE SIXTH CIRCUIT                        separate opinion concurring in the judgment.
                _________________
                                                                               _________________
 FERNANDO LOPEZ,                   X
                                                                                   OPINION
          Petitioner-Appellant, -                                              _________________
                                    -
                                    -  No. 01-3875
            v.                                                                    I. Introduction
                                    -
                                     >
                                    ,                         SUHRHEINRICH, Circuit Judge. Under Rule 26(B) of the
 JULIUS WILSON, Warden,             -                      Ohio Rules of Appellate Procedure, an Ohio defendant
         Respondent-Appellee. -                            seeking to file an ineffective assistance of appellate counsel
                                   N                       claim must file an application to reopen in the state court of
       Appeal from the United States District Court        appeals where the appeal was decided rather than in a state
      for the Northern District of Ohio at Cleveland.      trial court. In White v. Schotten, 201 F.3d 743, 752-53 (6th
    No. 00-02416—Donald C. Nugent, District Judge.         Cir.), cert. denied, 531 U.S. 940 (2000), this Court held that
                                                           an application to reopen appeal under Rule 26(B) of the Ohio
              Argued: September 16, 2003                   Rules of Appellate Procedure is part of a criminal defendant’s
                                                           direct appeal, rather than part of the state’s post-conviction
          Decided and Filed: January 15, 2004              process. The difference matters because a defendant is
                                                           constitutionally entitled to counsel only during the direct
Before: SUHRHEINRICH, COLE, and ROGERS, Circuit            appeal process. Compare Evitts v. Lucey, 469 U.S. 387, 396
                   Judges.                                 (1985) (holding that a defendant is entitled to effective
                                                           assistance of counsel on direct appeal), with Pennsylvania v.
                  _________________                        Finley, 481 U.S. 551, 555 (1987) (holding that a defendant is
                                                           not constitutionally entitled to counsel at any stage of
                       COUNSEL                             criminal proceedings beyond a direct appeal as of right).
                                                           Based on White, Petitioner Fernando Lopez claims in this
ARGUED: Robert D. Little, LAW OFFICE OF ROBERT             habeas action that the state court’s denial of his request for
LITTLE, Maplewood, New Jersey, for Appellant. Douglas R.   appointment of counsel to file a Rule 26(B) motion violated
Cole, OFFICE OF THE ATTORNEY GENERAL OF OHIO,              his federal constitutional rights. Lopez appeals from the order
Columbus, Ohio, for Appellee. ON BRIEF: Robert D.          of the district court denying his petition for writ of habeas
Little, LAW OFFICE OF ROBERT LITTLE, Maplewood,            corpus on this ground. See 28 U.S.C. § 2254. This Court
New Jersey, for Appellant. David M. Gormley, Thelma        granted a certificate of appealability on that issue.

                            1
No. 01-3875                                 Lopez v. Wilson        3    4       Lopez v. Wilson                                    No. 01-3875

  For the reasons that follow, we conclude that White is not            superior appellate court. The Court held that a defendant had
controlling in this case, because the White decision predates           a remedy nonetheless, by raising such claims in the Ohio
the AEDPA,1 which applies here, and that under the AEDPA,               appellate courts under the then-extant version of Rule 26.
the state court’s decision was not contrary to clearly                  Murnahan 584 N.E.2d, 1290 n. 3. Although by its terms Rule
established Federal law. We hold that the district court did            26 seems to permit only reconsideration of “any cause or
not err in denying the writ.                                            motion originally submitted on appeal,” the Ohio Supreme
                                                                        Court “construe[d] claims of ineffective assistance of
                         II. Background                                 appellate counsel to be tantamount to constitutional claims
                                                                        that should have been presented on appeal,” and thus within
                          A. Rule 26(B)                                 the scope of the rule. Id.
  On July 1, 1993, Rule 26(B) of the Ohio Rules of Appellate              At the same time, the Murnahan court recognized the
Procedure took effect. That rule provides in relevant part:             imperfect fit between Rule 26 and ineffective assistance of
                                                                        appellate claims and recommended that Rule 26 be amended.
  A defendant in a criminal case may apply for reopening                Id. at 1209 n.6. In response, the Ohio Supreme Court
  of the appeal from the judgment of conviction and                     amended the rule in 1993, adding the above-quoted
  sentence, based on a claim of ineffective assistance of               subsection.2 However, neither the Ohio Supreme Court nor
  appellate counsel. An application for reopening shall be
  filed in the court of appeals where the appeal was
  decided within ninety days from journalization of the                     2
                                                                             The Staff N ote to the 7-1-93 A mendme nt states in relevant p art:
  appellate judgment unless the applicant shows good                             The 1993 amendment was in response to the Supreme
  cause for filing at a later time.                                         Court’s opinion in State v. Murnahan (1992), 63 Ohio St. 3d 60,
                                                                            66 n.6. In Murnahan, the Co urt held that claims of ineffective
The Ohio Supreme Court adopted this rule after its decision                 assistance of appellate counsel may be raised in an application
in State v. Murnahan, 584 N.E.2d 1204 (Ohio 1992). In                       for reconsideration in the court of appeals, syl. 1, and requested
                                                                            that a rule be drafted to govern suc h applications. Id. at 66 n.6.
Murnahan, counsel on direct appeal submitted an Anders                           App. R. 26 p reviously permitted applications for
brief and was permitted to withdraw. Murnahan filed a pro se                reconsideration to be filed within ten days of the journalization
brief, but the Ohio Court of Appeals rejected his appeal.                   or announcement of the appellate decision. The Court noted in
Murnahan next sought post-conviction relief in the state trial              Murnahan that although reconsideration under Rule 26 appeared
court under Ohio Rev. Code § 2953.21, claiming that his                     to be restricted to issues already presented to the ap pellate court,
                                                                            the Court “construe[d] claims of ineffective assistance of
appellate counsel had been ineffective. The Ohio Supreme                    app ellate counsel to be tantamount to constitutional claims that
Court held that ineffective assistance of appellate claims are              should have been presented on appea l, and but for their omission
not cognizable in post-conviction proceedings pursuant to                   the outcome of the case would be otherwise.” Id. at 65 n.3 .
Ohio Rev. Code. § 2953.21, because it would be improper for                 Because “claims of ineffective assistance of appellate counsel
an inferior court to rule on the adequacy of a proceeding in a              may be left undiscovered due to the inadequacy of appellate
                                                                            counsel or the inability of the defendant to identify such errors
                                                                            within the time allotted for reconsideration,” the Court stated
                                                                            that it may be necessary for defendants to request delayed
    1
                                                                            reconsideration. Id. at 65-66. The amend ment thus provides for
     Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C.       reconsideration in criminal cases beyond the previous limitation
§ 2254 (d)(1) (1994 & Supp. VII) (AE DPA ).                                 of time. The rule permits delayed reconsideration only of the
No. 01-3875                                    Lopez v. Wilson        5   6      Lopez v. Wilson                              No. 01-3875

the new rule indicated whether such proceedings were to be                    cannot be considered part of an Ohio post-conviction
treated as part of direct or collateral review.                               matter.
  This Court did so in White, supra. Counsel in that case did                    If the application for delayed reconsideration is neither
not file a Rule 26(B) application until three years after the                 part of a state habeas nor state post-conviction
ninety-day limit had expired. Noting that an attorney’s failure               proceeding, it must be a continuation of activities related
to meet a deadline in handling a client’s appeal falls below                  to the direct appeal itself. Because a defendant is entitled
minimal standards of competency imposed on counsel to                         to effective assistance of counsel on direct appeal, see
satisfy constitutional safeguards, and that a defendant only                  Evitts v. Lucey, 469 U.S. 387, 396 . . . (1985), such an
has a constitutional right to assistance of counsel on direct                 individual must be accorded effective assistance of
appeal, the question became whether Rule 26(B) applications                   counsel throughout all phases of that stage of the
were part of direct or collateral review. The White court                     criminal proceedings.
concluded that an application to reopen appeal under Rule
26(B) is part of a criminal defendant’s direct appeal, and                White, 201 F.3d at 752-53.
because of that, counsel was constitutionally required.
                                                                                               B. Procedural History
     The State of Ohio argues . . . that a petitioner such as
  White has no constitutional right to counsel at any stage                 Lopez was convicted in 1998 of three counts of rape and
  of criminal proceedings beyond a direct appeal as of                    three counts of gross sexual imposition. The lower courts
  right. See Pennsylvania v. Finley, 481 U.S. 551, 555 . . .              sentenced him to terms of life imprisonment on the rape
  (1987). Without a right to counsel, the petitioner also                 counts and three years of imprisonment on each of the
  has no commensurate right to effective assistance from                  remaining counts. The Ohio Court of Appeals affirmed the
  that counsel. However, as this court’s decision in                      convictions and sentences on direct appeal. State v. Lopez,
  Manning v. Alexander, 912 F.2d 878, 882 (6th Cir.                       No. 74096, 1999 WL 304527 (Ohio App. 1999). Lopez was
  1999), made clear, Ohio law does not consider an attack                 represented by counsel during that appeal.
  on the adequacy of appellate counsel to be proper in a
  state habeas proceeding. See Manning, 912 F.2d at 882                      In December 1999, more than six months after the state
  (citing Manning v. Alexander, 50 Ohio St.3d 127, 553                    court of appeals issued its judgment, Lopez filed a pro se
  N.E.2d 264 (Ohio1990); In re: Petition of Brown, 49                     application to reopen his appeal under Ohio R. App. P. 26(B),
  Ohio St.3d 222, 551 N.E.2d 954 (1990)). Furthermore,                    alleging that his lawyer in his direct appeal was
  Murnahan emphatically holds that any such attack                        constitutionally ineffective. Lopez also asked the state court
                                                                          of appeals to appoint new counsel for him. The appellate
                                                                          court ordered a copy of his trial transcript and ordered all
                                                                          proceedings not previously transcribed as part of the direct
   direct appeal and does not ap ply to ap peals related to post-         appeal to be transcribed and filed with the court. On May 11,
   conviction proceedings pursuant to R.C. 2953.21 .            The
   amendment permits applications to be filed more than ninety
                                                                          2000, the Ohio Court of Appeals denied Lopez’s motion to
   days after the appellate judgment’s journalization if good cause       reopen the appeal and denied the motion for appointment of
   is shown. See App. R. 1 4(B ).                                         counsel, finding that Lopez had not shown that his original
                                                                          appellate lawyer was ineffective. State v. Lopez, No. 74096,
   (Ohio R. A pp. P . 26(b ), Staff note to 7-1 -93 amendme nt).
No. 01-3875                              Lopez v. Wilson       7    8      Lopez v. Wilson                              No. 01-3875

2000 WL 574441 (Ohio App. 2000). The Ohio Supreme                       “defendant in a criminal case may apply for reopening of
Court declined to review that judgment. State v. Lopez, 732             the appeal from the judgment of conviction and sentence,
N.E.2d 999 (Ohio 2000).                                                 based on a claim of ineffective assistance of appellate
                                                                        counsel”-- a civil, post-conviction or collateral
   On September 21, 2000, Lopez filed his federal habeas                proceeding for challenging a final judgment in a criminal
petition, raising two claims: (1) he was denied his federal             case, or is it instead part of the defendant’s first-appeal-
right to the effective assistance of appellate counsel during his       of-right in the criminal case?
application for reopening filed under Ohio Appellate Rule
26(B); and (2) he was denied his right to the effective                                        III. AEDPA
assistance of appellate counsel on his first direct appeal. The
district court denied the petition, and denied a certificate of        “Congress enacted AEDPA to reduce delays in the
appealability. The court held that Lopez was not entitled to        execution of state and federal criminal sentences, . . . and to
habeas relief on these claims because the state court’s             further the principles of comity, finality, and federalism.”
decisions were not contrary to or an unreasonable application       Woodford v. Garceau, 123 S. Ct. 1398, 1401 (2003) (internal
of clearly established law as determined by the United States       citations and quotation marks omitted). Congress did so
Supreme Court. See 28 U.S.C. § 2254(d); Williams v. Taylor,         through both procedural requirements, see David v. Hall, 318
529 U.S. 362, 412 (2000). The district court noted as to the        F.3d 343, 346 (1st Cir. 2003) (stating that “[o]ne of AEDPA’s
first claim, a lack of Supreme Court precedent supporting a         main purposes was to compel habeas petitions to be filed
right to counsel in an application to reopen a direct appeal.       promptly after conviction and direct review, to limit their
The district court also observed that, in White, this Court held    number, and to permit delayed or second petitions only in
that an Ohio criminal defendant has the right to counsel            fairly narrow and explicitly defined circumstances” (citing 28
during his application for reopening under Rule 26(B), but did      U.S.C. § 2244(d)(1)(A)-(D); H.R.Rep. No. 104-518 at 111
not find it dispositive because White was decided prior to          (1996)), and standards governing the merits of a habeas
Williams, and therefore, this Court had no reason to analyze        application. See Woodford, 123 S. Ct. 1401. One of the
the state court opinion under the Williams factors.                 mechanisms for accomplishing these goals was an amended
                                                                    version of 28 U.S.C. § 2254(d)(1), which places “new
   Lopez appealed to this Court. On February 14, 2002, this         constraint[s] on the power of a federal habeas court to grant
Court granted a certificate of appealability on the following       a state prisoner’s application for a writ of habeas corpus with
issue: “Whether Lopez was denied the right to the effective         respect to claims adjudicated on the merits in state court.”
assistance of appellate counsel during his application for          Williams v. Taylor, 529 U.S. 362, 412 (2000).
reopening filed under Ohio App. R. 26(B).” Order dated
February 14, 2002.                                                      The Act provides in relevant part as follows:

  On April 22, 2002, Respondent asked this Court to certify             (d) An application for a writ of habeas corpus on behalf
the following question to the Ohio Supreme Court:                       of a person in custody pursuant to the judgment of a State
                                                                        court shall not be granted with respect to any claim that
  Is a proceeding filed in the Ohio court of appeals under              was adjudicated on the merits in State court proceedings
  Rule 26(B) of the Ohio Rules of Appellate                             unless the adjudication of the claim–
  Procedure–which provides in relevant part that a
No. 01-3875                                     Lopez v. Wilson           9   10     Lopez v. Wilson                                       No. 01-3875

  (1) resulted in a decision that was contrary to, or                         Supreme Court precedent or otherwise explain its reasoning.
  involved an unreasonable application of, clearly                            However, the state court decision need not cite Supreme
  established Federal law, as determined by the Supreme                       Court precedent, or even reflect awareness of Supreme Court
  Court of the United States.                                                 cases, “so long as neither the reasoning nor the result of the
                                                                              state-court decision contradicts them.” Early v. Packer, 537
28 U.S.C. § 2254(d)(1). In Williams, supra, the Supreme                       U.S. 3, 8 (2002) (per curiam).
Court explained the meaning of “contrary to” and
“unreasonable application.” A state court’s legal decision is                                               IV. Analysis
“contrary to” clearly established federal law under §
2254(d)(1) if the state court arrived at a conclusion opposite                                                A. Merits
to that reached by the Supreme Court on a question of law or
if the state court decided a case differently than the Supreme                  Lopez argues that the district court erred in denying the writ
Court’s decisions on materially indistinguishable facts. Id. at               because the United States Supreme Court has found a
412-13. An “unreasonable application” occurs when the state                   constitutional right to appointed counsel, and this Court has
court correctly identified the correct legal principle from                   ruled that Ohio’s application to reopen a direct appeal is a
Supreme Court precedent but unreasonably applied that                         direct appeal requiring the appointment of counsel. See
principle to the facts of the case before it. Id. “[C]learly                  White, supra. Were this case not governed by the AEPDA,
established Federal law, as determined by the Supreme                         White, a pre-AEDPA decision, would be controlling and
Court,” refers to “the holdings, as opposed to the dicta, of [the             Lopez would easily prevail on this point. However, the
Supreme] Court’s decisions as of the time of the relevant                     AEDPA applies here, requiring us to analyze the
state-court decision.” Id. at 412.                                            constitutional question under the more deferential standards
                                                                              set forth by that Act. Compare Taylor v. Withrow, 288 F.3d
   Thus, according to the AEDPA and the Supreme Court, our                    846, 850 (6th Cir. 2002) (noting that the AEDPA “sets a
inquiry begins with the relevant state court decision. Here,                  higher hurdle for those seeking habeas than before”), cert.
the Ohio Court of Appeals denied Lopez’s motion for                           denied, 537 U.S. 1007 (2002), with McQueen v. Scroggy, 99
appointment of counsel on May 11, 2000, stating merely that                   F.3d 1302, 1310 (6th Cir. 1996) (pre-AEDPA case; stating
“Motion by Appellant, Pro Se, For Appointment of Counsel                      that de novo standard of review applies to questions of federal
is Denied.”3 The state court did not identify controlling                     constitutional law). See also Price v. Vincent, 123 S. Ct. 1848
                                                                              (2003) (reiterating § 2254 standards, as explained by Williams
                                                                              court; faulting Sixth Circuit for reciting this standard but then
    3                                                                         evaluating the respondent’s claim de novo rather than through
      Ironically, in its opinion denying Petitioner’s pro se application to
reopen direct appeal, the Ohio Court of App eals cited White v. Schotten,     the lens of § 2254(d)). In short, because the standard of
albeit for a different proposition:                                           review is much more deferential under the AEDPA, White is
                                                                              not controlling.
    The fact that applicant’s appellate couns el did not present the
    assignm ents of error as federal constitutional violations does not
    preclude applicant from raising these issues in a federal habeas
    petition and having them reviewed by a federal court if counsel’s              counsel did not raise federal issues in state court].
    failure to do so am ounted to ineffective assistance of appellate
    counsel. See White v. Schotten , (6th Cir.2000), 201 F.3d 743.            State v. Lopez, No. 74096, 2000 WL 574441, at *3 (N.D. Ohio May 11,
    Consequently, applicant is not prejudiced [because his appellate          200 0).
No. 01-3875                             Lopez v. Wilson     11    12       Lopez v. Wilson                                  No. 01-3875

  The White decision involved the application of Evitts to “a       (emphasis added)). If 26(B) proceedings were not part of
unique aspect of Ohio law,” Rule 26(B). See McClendon v.            the Ohio habeas or other post-conviction review, we
Sherman, 329 F.3d 490, 494 (6th Cir. 2003). Prior to                reasoned, they must be part of direct review. Ibid. If
determining the federal constitutional question of whether the      they were part of direct review, White had a
petitioner was entitled to counsel in filing his application to     constitutional right to effective assistance of counsel. Id.
reopen direct appeal, the White court determined whether a          at 752-53, 584 N.E.2d 1204. As he had been denied such
state procedural rule, 26(B), was part of direct or collateral      assistance, we remanded for consideration of the merits
review. As a panel of this Court recently explained:                of his claims. Id. at 754, 584 N.E.2d 1204. The United
                                                                    States Supreme Court denied certiorari. Bagley v. White,
  [In White] [w]e first noted that “an attorney’s failure or        531 U.S. 940 . . . (2000) (mem.).
  refusal to abide by established time deadlines in handling
  a client’s appeal is conduct falling below the minimal          Lambert v. Warden, Ross Correctional, No. 01-34222, 2003
  standards of competency that federal case law has               WL 22071466, at *3 (6th Cir. Sept. 2, 2003) (emphasis
  imposed upon counsel to satisfy constitutional                  added).
  standards.” Id. at 752 (citing Strickland v. Washington,
  466 U.S. 668, 698 . . . (1984), and Ludwig v. United               While several of our published cases have purported to
  States, 162 F.3d 456, 459 (6th Cir. 1998)). While the           apply the rule of White in the AEDPA setting, see Bronaugh
  Ohio Public Defender indisputably and grossly failed to         v. Ohio, 235 F.3d 280 (6th Cir. 2000); Searcy v. Carter, 246
  abide the ninety-day deadline for 26(B) applications and        F.3d 515, 519 (6th Cir. 2002); Miller v. Collins, 305 F.3d
  therefore rendered ineffective assistance of counsel, this      491, 493-95 (6th Cir. 2002); Griffin v. Rogers, 308 F.3d 647,
  conclusion alone does not establish a constitutional            655 (6th Cir. 2002), in each of those cases, the question of
  violation because a defendant only has a constitutional         whether a Rule 26(B) motion was part of direct or collateral
  right to effective assistance of counsel when there is a        review was decided in the context of the proper application of
  constitutional right to effective assistance of counsel         the AEDPA statute of limitations and its tolling provision,
  when there is a constitutional right to assistance of           28 U.S.C. § 2244(d)(1)(A) & (d)(2).4 In determining whether
  counsel simpliciter. As there is such a constitutional          a habeas petition is barred by the statute of limitations, a
  right only on direct and not on collateral review, the          federal court is not provided with a state court decision on the
  resolution of [the] case depended on this classification
  of 26(B) applications. Ibid. (citing Pennsylvania v.
                                                                       4
  Finley, 481 U.S. 551, 555 . . . (1987)). We noted that                Under 28 U.S.C. § 2244(d)(1)(A), a conviction becomes final for
  challenges to the constitutional effectiveness of appellate     purposes of the one-year period of limitations upon “conclusion of direct
  counsel cannot be brought in Ohio habeas proceedings.           review or the expiration of the time for seeking such review.” Section
  Ibid. (citing Manning v. Alexander, 912 F.2d 878, 882           2244(d)(2) provides that “[t]he tim e during which a properly filed
                                                                  application for State post-conviction or other collateral review with
  (6th Cir. 1990)). Then we concluded that such                   respect to the pertinent judgment or claim is pending shall not be counted
  challenges cannot be brought in any Ohio post-                  toward any period of limitation under this subsection.” In other words,
  conviction proceedings. Ibid. (citing Murnahan, 584             “[s]ection 2244 explicitly distinguishes between the conclusion of direct
  N.E.2d at 1208 (holding “that claims of ineffective             review, after which the limitation period begins to run, 28 U.S.C.
  assistance of appellate counsel are not cognizable in post-     § 2244(d )(1)(A), and post-conviction remedies, during which the
                                                                  limitation perio d is merely tolled, § 2244(d)(2).” McClendon v. Sherman,
  conviction proceedings pursuant to R.C. 2953.21.”               329 F.3d 490, 493 (6th Cir. 2003).
No. 01-3875                              Lopez v. Wilson     13    14   Lopez v. Wilson                              No. 01-3875

issue, to which it owes deference under AEDPA, because no            357 U.S. 214, 215 . . . (1958) (per curiam) (invalidating
state court will have the opportunity to consider the issue. By      state rule giving free transcripts only to defendants who
contrast, in cases such as this, in which a federal court must       could convince a trial judge that “justice will thereby be
consider the nature of 26(B) application to determine whether        promoted”); Burns v. Ohio, 360 U.S. 252 . . . (1959)
a criminal defendant has the right to counsel in filing such an      (invalidating state requirement that indigent defendants
application, the federal court must grant AEDPA deference to         pay fee before filing notice of appeal of conviction);
the state court’s conclusion that the defendant was not entitled     Lane v. Brown, 372 U.S. 477 . . . (1963) (invalidating
to appointed counsel. Accordingly, even those post-AEDPA             state procedure whereby meaningful appeal was possible
Sixth Circuit decisions considering the nature of 26(B)              only if public defender requested a transcript); Draper v.
applications for the purpose of determining the timeliness of        Washington, 372 U.S. 487 . . . (1963) (invalidating state
habeas petitions do not engage in the analysis required here         procedure providing for free transcript only for a
– a determination of whether a state court’s decision is             defendant who could satisfy the trial judge that his appeal
contrary to or an unreasonable application of federal law –          was not frivolous).
and the holdings at those cases are properly limited to such
cases.                                                                  Just as a transcript may by rule or custom be a
                                                                     prerequisite to appellate review, the services of a lawyer
  We now turn to the “clearly established Federal law” at the        will for virtually every layman be necessary to present an
time of the Ohio Court of Appeals’ decision. Evitts v. Lucey,        appeal in a form suitable for appellate consideration on
469 U.S. 387 (1985), which White itself relied upon, provides        the merits. See Griffin, supra, 351 U.S. at 20 . . . .
the best overview of the applicable Supreme Court precedent:         Therefore, Douglas v. California, supra, recognized that
                                                                     the principles of Griffin required a State that afforded a
     Almost a century ago, the Court held that the                   right of appeal to make that appeal more than a
  Constitution does not require States to grant appeals as of        “meaningless ritual” by supplying an indigent appellant
  right to criminal defendants seeking to review alleged             in a criminal case with an attorney. 372 U.S. at 358 . . . .
  trial court errors. McKane v. Durston, 153 U.S. 684 . . .          This right to counsel is limited to the first appeal as of
  (1894). Nonetheless, if a State has created appellate              right, see Ross v. Moffitt, 417 U.S. 600 . . . (1974), and
  courts as “an integral part of the . . . system for finally        the attorney need not advance every argument, regardless
  adjudicating the guilt or innocence of a defendant,”               of merit, urged by the appellant, see Jones v. Barnes, 463
  Griffin v. Illinois, 351 U.S., at 18 . . . , the procedures        U.S. 745 . . . (1983). But the attorney must be available
  used in deciding appeals must comport with the demands             to assist in preparing and submitting a brief to the
  of the Due Process and Equal Protection Clauses of the             appellate court, Swenson v. Bosler, 386 U.S. 258 . . .
  Constitution. In Griffin itself, a transcript of the trial         (1967) (per curiam), and must play the role of an active
  court proceedings was a prerequisite to a decision on the          advocate, rather than a mere friend of the court assisting
  merits of an appeal. See id., at 13-14 . . . . We held that        in a detached evaluation of the appellant’s claim. See
  the State must provide such a transcript to indigent               Anders v. California, 386 U.S. 738 . . . (1967); see also
  criminal appellants who could not afford to buy one if             Entsminger v. Iowa, 386 U.S. 748 . . . (1967).
  that was the only way to assure an “adequate and
  effective” appeal. Id. at 20 . . . ; see also Eskridge v.        Evitts, 469 U.S. at 393-94.
  Washington State Board of Prison Terms and Paroles,
No. 01-3875                             Lopez v. Wilson      15    16    Lopez v. Wilson                              No. 01-3875

   As Evitts’ canvassing of the relevant precedent reflects, the     by an appellate court. We are dealing only with the first
Supreme Court has never held that a criminal defendant has           appeal, granted as a matter of right to rich and poor alike
the right to assistance of counsel to file an application to         (Cal. Penal Code §§ 1235, 1237), from a criminal
reopen a direct appeal. The question becomes whether the             conviction.
facts of the present case are “materially indistinguishable”
from one of the foregoing decisions but with a different           Douglas, 372 U.S. at 356.
result. See Williams, 529 U.S. at 406. None of the foregoing
cases are factually analogous, however. To begin with, only           In Evitts, the defendant’s retained counsel filed a timely
a few of those cases actually deal with access to counsel per      notice of appeal but failed to file the statement of appeal as
se, and only two, Douglas v. California, 372 U.S. 353 (1963),      required by a state rule of appellate procedure when he filed
and Evitts, found the right to assistance of counsel on appeal     the brief and record on appeal, resulting in dismissal of the
as of right. In Douglas, the indigent defendants were denied       appeal. Thus, the issue in Evitts was whether the Due Process
their request for the assistance of counsel on appeal as of        Clause of the Fourteenth Amendment guarantees the criminal
right. The Douglas court found that the defendants were            defendant the right to the effective assistance of counsel on his
denied equal protection of the law where their one appeal of       first appeal as of right. The Supreme Court held that it did.
right was decided without the benefit of counsel. The
Douglas Court analogized to Griffin v. Illinois, 351 U.S. 12          The Supreme Court found no right to appointed counsel in
(1956):                                                            Ross v. Moffitt, 417 U.S. 600 (1974) and Pennsylvania v.
                                                                   Finley, 481 U.S. 551 (1987). In Ross, the defendant was
  In Griffin v. Illinois, we held that a State may not grant       denied appointment of counsel for discretionary review, after
  appellate review in such a way as to discriminate against        his convictions were affirmed on his appeals of right by the
  some convicted defendants on account of their poverty.           state court of appeals. The Ross Court held that the rule of
  There, as in Draper v. Washington, 372 U.S. 487, . . . the       Douglas did not extend to discretionary state appeals and for
  right to a free transcript on appeal was in issue. Here the      petitions of certiorari. In Finley, the Supreme Court held that
  issue is whether or not an indigent shall be denied the          a state law providing prisoners assistance of counsel in
  assistance of counsel on appeal. In either case the evil is      collateral postconviction proceedings did not require full
  the same: discrimination against the indigent. For there         procedural protections which the Constitution extends for trial
  can be no equal justice where the kind of an appeal a man        and first appeal as of right. The Finley Court reasoned that
  enjoys ‘depends on the amount of money he has.’ Griffin          “since a defendant has no constitutional right to counsel when
  v. Illinois, supra, at p. 19 . . . .                             pursuing a discretionary appeal on direct review of his
                                                                   conviction, a fortiorari, he has no such right when attacking
Douglas, 372 U.S. at 355. Significantly, the Supreme Court         a conviction that has long since become final upon exhaustion
limited its holding as follows:                                    of the appellate process.” Id. at 555.

  We are not here concerned with problems that might                 Here, Lopez’s request for appointed counsel to file an
  arise from the denial of counsel for the preparation of a        application to reopen his first appeal as of right is somewhere
  petition for discretionary or mandatory review beyond            “beyond the stage in the appellate process at which the claims
  the stage in the appellate process at which the claims           have once been presented by a lawyer and passed upon by an
  have once been presented by a lawyer and passed upon             appellate court.” Douglas, 372 U.S. at 356. Although a panel
No. 01-3875                             Lopez v. Wilson      17    18   Lopez v. Wilson                             No. 01-3875

of this Court upon de novo review has determined that such         for purposes of determining whether the federal question
a motion falls under the rubric of a direct appeal, under the      presented.
more deferential standard of review set forth in the AEDPA,
it cannot be said that the Ohio Court of Appeals’ decision                                V. Conclusion
denying the right to appointed counsel was contrary to
“clearly established Federal law as determined by the                For the foregoing reasons, the judgment of the district court
Supreme Court,” because the result is not different from a         denying Petitioner’s petition for writ of habeas corpus is
case with materially indistinguishable facts.                      AFFIRMED. Petitioner’s motion to certify is DENIED.

  In sum, as the district court held, the decision of the state
appellate court denying Lopez’s request for appointment of
counsel was not contrary to “clearly established Federal law,
as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1).
                    B. Motion to Certify
   The Warden has also asked us to certify to the Ohio
Supreme Court the question of whether a Rule 26(B) motion
to reopen is properly characterized as a civil, post-conviction
proceeding for challenging a final judgment in a criminal
case, or is instead part of the defendant’s first appeal as of
right in a criminal case. Rightly or wrongly, see Lambert,
2003 WL 22071466, at *7-8, this question has already been
addressed by this Circuit in White. Thus, a request for further
clarification by the Ohio Supreme Court by this panel would
be improper, because the only reason for this panel to certify
a question would be to revisit the prior panel’s decision,
which we cannot do. See Salmi v. Secretary of Health &
Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“A panel
of this Court cannot overrule the decision of another panel.
The prior decision remains controlling authority unless an
inconsistent decision of the United States Supreme Court
requires modification of the decision or this Court sitting en
banc overrules the prior decision.”); see also 6th Cir. Rule
206(c) (stating that a published panel opinion is binding on all
subsequent panels). In any event, we would not be bound by
the state courts’ characterization of Rule 26(B) proceedings
No. 01-3875                              Lopez v. Wilson     19

                   ___________________

                     CONCURRENCE
                   ___________________

   R. GUY COLE, JR., Circuit Judge, concurring in the
judgment. I concur only in the judgment reached by the
majority and agree that Lopez’s petition for a writ of habeas
corpus must be denied. The crucial inquiry in this case is
whether the state’s decision to deny Lopez counsel with
respect to his motion to reopen an appeal was contrary to
clearly established federal law as determined by the United
States Supreme Court. Because the Supreme Court has not
established that criminal defendants are entitled to counsel in
a motion to reopen an appeal nor that such a motion is part of
a direct appeal, Lopez is not entitled to habeas relief pursuant
to the AEDPA. Absent clearly established law by the
Supreme Court with respect to those issues, the state court
was not bound by this Circuit’s characterization of Rule
26(B) proceedings as part of a criminal defendant’s direct
appeal.
