[Cite as State v. Jackson, 2012-Ohio-2052.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 92531


                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                                    vs.

                                  MICHAEL JACKSON
                                                     DEFENDANT-APPELLANT



                                      JUDGMENT:
                                  APPLICATION DENIED


                              Cuyahoga County Common Pleas Court
                                     Case No. CR-505342
                                   Application for Reopening
                                      Motion No. 449795

RELEASE DATE: May 4, 2012
                                              -i-
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FOR APPELLANT

Michael Jackson, pro se
Inmate No. 560-241
Belmont Correctional Institution
P.O. Box 540
St. Clairsville, OH 43950


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Katherine Mullin
Assistant Prosecuting Attorney
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
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KENNETH A. ROCCO, J.:

       {¶1} On November 28, 2011, the applicant, Michael Jackson, pursuant to App.R.

26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), applied to

reopen this court’s judgment in State v. Jackson, 8th Dist. No. 92531, 2010-Ohio-3080, in

which this court affirmed in part, reversed in part and remanded Jackson’s convictions

and sentences for rape and unlawful sexual conduct with a minor.1 Jackson claims that

his appellate counsel was ineffective because, inter alia, he did not argue ineffective

assistance of trial counsel in the formation of trial strategy and did not argue that the trial

court erred in denying Jackson’s Crim.R. 29 motion for acquital. The state of Ohio filed

its brief in opposition on January 29, 2012, and Jackson filed a response on February 8,

2012. For the following reasons, this court denies the application.

       {¶2} App.R. 26(B)(1) and (2)(b) require applications claiming ineffective

assistance of appellate counsel to be filed within 90 days from journalization of the


       1
        The jury convicted Jackson on one count of rape and one count of unlawful sexual
conduct with a minor; it found him not guilty on three other counts of rape. On appeal, this
court ruled that there was insufficient evidence to support the furthermore clause on the
unlawful sexual conduct count which increased the degree of the offense, and that the rape and
the unlawful sexual conduct charges were allied offenses. The state of Ohio conceded an
assignment of error that the trial court did not properly advise Jackson on postrelease control.
This court remanded for further proceedings consistent with its opinion.
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decision unless the applicant shows good cause for filing at a later time.       In the present

case this court journalized its decision on July 1, 2010, and Jackson did not file his

application until late November 2011. Thus, the application is untimely on its face.

       {¶3} In effort to show good cause, Jackson argues that his appellate counsel

continued to represent him before the Supreme Court of Ohio when the state of Ohio

appealed the allied offenses issue. Thus, he was prevented from filing his application to

reopen because if he fired his appellate counsel, he would lose his representation before

the Supreme Court of Ohio and would not be able to hire new counsel. He relies upon

Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714(2003) for the

proposition that “a claim of ineffective assistance of counsel could not be mounted at the

requisite time because petitioner still was being represented by the ineffective lawyer.”

(Pg. 3 of the application.)2

       {¶4} The Supreme Court of Ohio in State v. LaMar, 102 Ohio St.3d 467,



       2
         When the state appealed, Jackson’s appellate counsel tried to file a cross-appeal.
The supreme court accepted the state’s appeal, but denied the cross-appeal. State v. Jackson,
Supreme Court of Ohio Case No. 2010-1542. Jackson’s appellate counsel continued to
represent him throughout those proceedings. On August 11, 2011, the supreme court
remanded Jackson’s case to this court to apply State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314, 942 N.E.2d 1061, to the issue of allied offenses. Without further briefing
from the parties, this court on November 23, 2011, applied Johnson, and again concluded that
the charges of rape and unlawful sexual conduct with a minor were allied offenses. State v.
Jackson, 8th Dist. 92531, 2011-Ohio-6069. Jackson does not argue that his application is
timely because it was filed within 90 days of the latter opinion, and this court does not decide
the matter.
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2004-Ohio-3976, 812 N.E.2d 970, and State v. Gumm, 103 Ohio St.3d 162,

2004-Ohio-4755, 814 N.E.2d 861, rejected this argument. In those cases the applicants

argued that after the court of appeals decided their cases, their appellate counsels

continued to represent them, and their appellate counsels could not be expected to raise

their own incompetence.     Although the supreme court agreed with this latter principle, it

rejected the argument that continued representation provided good cause.       In both cases

the court ruled that the applicants could not ignore the ninety-day deadline, even if it

meant retaining new counsel or filing the applications themselves.

       {¶5} Furthermore, Jackson’s reliance on Massaro is misplaced.        In Massaro the

Court held that the failure to argue ineffective assistance of trial counsel on direct appeal

does not prevent the defendant from raising the issue in a 28 U.S.C. 2255 motion to

vacate.   The Court adopted this rule as a matter of judicial efficiency for federal

procedure and not as a constitutional requirement.        It does not hold that continued

representation by appellate counsel provides good cause for untimely filing of a remedy.

Jackson does not establish good cause for his untimely filing.




       {¶6} Accordingly, this court denies the application to reopen.




__________________________________________
KENNETH A. ROCCO, JUDGE
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MARY J. BOYLE, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
