                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 08a0357p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                   X
                           Petitioner-Appellant, -
 DREW PARKER, SR.,
                                                    -
                                                    -
                                                    -
                                                        No. 06-4355
         v.
                                                    ,
                                                     >
 MARGARET BAGLEY, Warden,                           -
                           Respondent-Appellee. -
                                                   N
                    Appeal from the United States District Court
                   for the Northern District of Ohio at Cleveland.
                   No. 01-01672—John R. Adams, District Judge.
                                            Argued: July 31, 2008
                                   Decided and Filed: October 3, 2008
Before: DAUGHTREY and McKEAGUE, Circuit Judges; VAN TATENHOVE, District Judge.*
                                             _________________
                                                   COUNSEL
ARGUED: Kort W. Gatterdam, CARPENTER, LIPPS & LELAND, Columbus, Ohio, for
Appellant. Diane Mallory, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio,
for Appellee. ON BRIEF: Kort W. Gatterdam, CARPENTER, LIPPS & LELAND, Columbus,
Ohio, for Appellant. Diane Mallory, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
       McKEAGUE, Circuit Judge. This is an appeal from the denial of a petition for writ of
habeas corpus. The district court issued a certificate of appealability on one issue, noting an
apparent lack of uniformity among Sixth Circuit rulings. Finding that the issue certified for appeal
has been definitively resolved by Sixth Circuit rulings rendered since the district court denied the
habeas petition, we now affirm the denial of habeas relief.




         *
           The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District of Kentucky,
sitting by designation.


                                                         1
No. 06-4355            Parker v. Bagley                                                            Page 2


                                                    I
       Petitioner Drew Parker, Sr., was found guilty by a jury of sixteen counts of gross sexual
imposition and four counts of felonious sexual penetration stemming from Parker’s abuse of his
step-grandchildren. On June 19, 1998, Parker was sentenced to a prison term of 30-50 years. The
Ohio Court of Appeals affirmed and the Ohio Supreme Court denied Parker’s appeal on July 19,
2000.

       Meanwhile, on May 25, 1999, Parker had filed a petition for post-conviction relief in the trial
court. The trial court denied Parker’s petition on October 28, 1999. Parker’s appeal from this
decision was denied by the Ohio Court of Appeals on October 4, 2000 and by the Ohio Supreme
Court on February 7, 2001. Parker’s former counsel’s representation ended on February 7, 2001.

         Next, Parker filed an application to reopen his appeal under Ohio R. App. P. 26(B) on June
28, 2001, contending his appellate counsel had provided ineffective assistance. On August 14, 2001,
the Ohio Court of Appeals denied Parker’s application to reopen, finding it to be untimely and
without good cause shown. Under Rule 26(B), an application to reopen must be filed in the court
of appeals within ninety days after journalization of the appellate judgment unless “good cause” for
later filing is shown. Parker’s appeal to the Ohio Supreme Court was denied.
        Prior to the Ohio Court of Appeals’ decision, Parker filed a petition for writ of habeas corpus
in the Northern District of Ohio on July 10, 2001, asserting, inter alia, the claim for ineffective
assistance of appellate counsel. The district court denied Parker’s petition based on procedural
default, and issued a certificate of appealability on the sole issue whether the time limitation in Rule
26(B) constitutes an “adequate and independent” state procedural ground foreclosing review of the
federal constitutional claim. Parker contends the rule is not adequate and independent because the
Ohio courts have not been consistent in their definition and application of the “good cause”
requirement.
                                                    II
       “To be adequate, a state procedural rule must be firmly established and regularly followed.”
Fautenberry v. Mitchell, 515 F.3d 614, 640 (6th Cir. 2008) (quoting Hutchison v. Bell, 303 F.3d 730,
737 (6th Cir. 2002)). To determine whether the state rule is adequate, the court must consider
whether the “adequate and independent state procedural bar [was] ‘firmly established and regularly
followed’ by the time as of which it [was] to be applied.” Id. at 641 (quoting Ford v. Georgia, 498
U.S. 411, 424 (1991) (emphasis added in Fautenberry)). In other words, the court must ask
“whether, at the time of the petitioner’s actions giving rise to the default, the petitioner could . . . be
deemed to have been apprised of the rule’s existence.” Id. (quoting Hutchison, 303 F.3d at 737).
       In 2002, in a non-capital case, the Sixth Circuit addressed the issue whether Ohio App. R.
26(B) represented an adequate state procedural rule as of 1998. Monzo v. Edwards, 281 F.3d 568,
577-78 (6th Cir. 2002). The court concluded that during the five years since the rule had been
adopted in 1993, the Ohio courts had provided sufficient guidance as to what would not constitute
good cause to render the rule firmly established and regularly followed. Id.
        In 2006, the Sixth Circuit again examined the timeliness requirement of Rule 26(B) in
Franklin v. Anderson, 434 F.3d 412, 418-19 (6th Cir. 2006), a capital case. The court considered
whether Rule 26(B) was an “adequate and independent” state rule in 1993, a day before Rule 26(B)
actually went into effect. At that time, the court held, Rule 26(B) was not firmly established and
regularly followed and therefore did not represent an adequate and independent state rule. Id. at
421. The court noted in further support of its conclusion that, in the meantime, the Ohio Supreme
Court had been “erratic in its handling of untimely Rule 26(B) applications in capital cases.” Id. at
No. 06-4355               Parker v. Bagley                                                                        Page 3


420. Franklin was followed in Wilson v. Mitchell, 498 F.3d 491, 512 (6th Cir. 2007), another capital
case, in relation to a 1996 application to reopen.
         Even more recently, however, in Fautenberry, yet another capital case, the Sixth Circuit held
that, as of January 1996, the time constraints of Rule 26(B) were firmly established and regularly
followed. 515 F.3d at 641. The Fautenberry court deemed Franklin factually distinguishable, based
on the state of Ohio law at the time the application to reopen should have been filed. Id. That is,
although the rule was not firmly established in 1993, it had become firmly established by 1996.
Fautenberry includes no mention of Wilson, but correctly emphasizes that the “firmly established
and regularly followed” determination must be made as of the time Rule 26(B) was to be applied,
515 F.3d at 641, a consideration that may have been overlooked in Wilson, 498 F.3d at 512.
        Yet, any facial inconsistency between Fautenberry and Wilson is immaterial in this case.
In Scuba v. Brigano, 527 F.3d 479, 488 (6th Cir. 2007), the Sixth Circuit has made it clear that Ohio
courts’ applications of Rule 26(B) in capital cases are irrelevant to the question whether Rule 26(B)
was firmly established and regularly followed by the Ohio courts in non-capital cases. In relation
to non-capital cases, Scuba reaffirms the holding of Monzo v. Edwards that Rule 26(B) was, by
1998, firmly established and regularly followed. Further, Scuba holds that Rule 26(B) continued
to be an adequate and independent state procedural rule at least until July 2002, when Scuba filed
his motion to reopen. Id.
        Because Parker’s petition arises in a non-capital case and his application to reopen was filed
beyond the ninety-day period, in June 2001, when the timeliness requirements of Rule 26(B) were
firmly established and regularly followed in non-capital cases, Scuba controls. It follows that the
untimeliness of Parker’s application to reopen was an1 adequate and independent state procedural
ground for the Ohio courts’ denial of the application. Parker’s procedural default was therefore
properly held to foreclose habeas relief on his claim for ineffective assistance of appellate counsel.
                                                           III
     Accordingly, the judgment of the district court denying the petition for habeas corpus is
AFFIRMED.




         1
           Parker urges the court to recognize that he has shown good cause for the untimeliness of his application
inasmuch as it was filed a mere 38 days after he obtained new appellate counsel, and less than five months after his
previous appellate counsel was discharged, and less than sixteen months after the Ohio Court of Appeals rendered its
decision. Yet, whether Parker has shown good cause is beyond the scope of the question certified for appeal.
          Moreover, even if the issue were properly before us, Parker’s position that his temporary lack of representation
excuses the tardiness of his application finds little support in the Ohio case law. The weight of authority, in fact, is to
the contrary. In Monzo v. Edwards, the Sixth Circuit held that “lack of effort or imagination” and “ignorance of the law”
are not circumstances that establish good cause for failure to seek timely relief. 281 F.3d at 578. This understanding
has been consistently applied by the Ohio courts. See State v. Farrow, 874 N.E.2d 526, 527 (Ohio 2007) (holding
defendant could not rely on his own alleged lack of legal training to excuse his failure to comply with the Rule 26(B)
deadline); State v. LaMar, 812 N.E.2d 970 (Ohio 2004) (same); State v. Quinn, No. L-06-1003, 2008 WL 2780331 at
*1 (Ohio App. 6 Dist. 2008) (“[A]n applicant has no right to counsel in filing the application and, therefore, does not
show good cause if he has no counsel to file a timely [Rule] 26(B) application.”).
