       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206
    ELECTRONIC CITATION: 2000 FED App. 0036P (6th Cir.)
                File Name: 00a0036p.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                             ;
                              
 FREDERICK WHITE,
                              
         Petitioner-Appellant,
                              
                              
                                       No. 97-4066
          v.
                              
                               >
 JAMES SCHOTTEN, Warden,      
        Respondent-Appellee. 
                             1

      Appeal from the United States District Court
     for the Northern District of Ohio at Cleveland.
   No. 95-02801—Patricia A. Gaughan, District Judge.
                 Argued: June 10, 1999
          Decided and Filed: January 26, 2000
  Before: KEITH, DAUGHTREY, and MOORE, Circuit
                     Judges.
                  _________________
                       COUNSEL
ARGUED: Kort W. Gatterdam, PUBLIC DEFENDER’S
OFFICE, OHIO PUBLIC DEFENDER COMMISSION,
Columbus, Ohio, for Appellant. Stuart W. Harris, OFFICE
OF THE ATTORNEY GENERAL, CORRECTIONS
LITIGATION SECTION, Columbus, Ohio, for Appellee.
ON BRIEF: Kort W. Gatterdam, PUBLIC DEFENDER’S

                            1
2    White v. Schotten                            No. 97-4066      No. 97-4066                           White v. Schotten     19

OFFICE, OHIO PUBLIC DEFENDER COMMISSION,                           cause to excuse any failure to comply with the procedural
Columbus, Ohio, for Appellant. Stuart W. Harris, OFFICE            requirements contained in Ohio Rule of Appellate Procedure
OF THE ATTORNEY GENERAL, CORRECTIONS                               26(B). Accordingly, we remand to the district court to
LITIGATION SECTION, Columbus, Ohio, for Appellee.                  consider whether the petitioner has established that he was
                                                                   actually prejudiced by the alleged constitutional error and, if
                    _________________                              so, to review his constitutional claims on their merits.
                        OPINION
                    _________________
   MARTHA CRAIG DAUGHTREY, Circuit Judge.
Petitioner Frederick White appeals the district court’s
dismissal of his habeas corpus petition, filed pursuant to 28
U.S.C. § 2254. In the petition, White challenges his 1989
state convictions for aggravated murder with a firearm
specification, felonious assault with a firearm specification,
and possession of a weapon under disability, alleging that his
appellate counsel rendered constitutionally ineffective
assistance. The district court dismissed the petition on the
ground of procedural default, finding that the petitioner had
failed to raise the issue of ineffective assistance of counsel
within the time limit set by Ohio App. R. 26(B). The district
court further found that White was unable to show cause and
prejudice for the default.
   Under applicable Ohio law, a claim of ineffective assistance
is raised by application to reopen the direct appeal. Rule
26(B) provides that the application must be filed within 90
days “from journalization of the appellate judgment.” In this
case, the petitioner’s attorney filed the application some three
years after the 90-day period had run. Because an application
for reopening the direct appeal in Ohio is part of the direct
appeal process, and because a defendant has a right to
effective assistance of counsel during that stage of
proceedings, we conclude that the petitioner in this case is
able to show cause for his procedural default, i.e., counsel’s
failure to file a timely application for reopening. However,
the issue of whether the petitioner was prejudiced by the
alleged constitutional error was not addressed by the district
court and is not adequately briefed before us. Hence, we must
remand the case to the district court to make that
18   White v. Schotten                            No. 97-4066      No. 97-4066                            White v. Schotten        3

   However, as previously stated, we conclude that the             determination and, if it finds that the petitioner has
petitioner has shown cause for his default, and if he is able to   established prejudice, to review the petitioner’s constitutional
demonstrate that he was actually prejudiced by the alleged         claims on their merits.
constitutional error, he is entitled to federal review of the
merits of his constitutional claims. Because the issue of             PROCEDURAL AND FACTUAL BACKGROUND
prejudice is not adequately briefed, we remand for the district
court to consider the issue, keeping in mind the following           The convictions underlying Frederick White’s federal
guidelines for such analysis articulated in Maupin, which the      petition for habeas corpus arise from the shooting death of his
court gleaned from various Supreme Court cases: (1) “the           former wife, Kimberly Hawkins White, as she left work. The
prejudice that must be shown must be a result of the alleged       Ohio Court of Appeals, affirming the petitioner’s convictions
constitutional violation and not a result of the trial counsel’s   and sentence on direct appeal, stated the facts of this case as
failure to meet state procedural guidelines;” (2) “the burden      follows:
is on the petitioner to show that he was [actually] prejudiced
by the alleged constitutional error..., not merely a possibility     [Kimberly Hawkins] White worked as a nurse's assistant
of prejudice;” and (3) “in analyzing a petitioner’s contention       at the Mount St. Joseph Nursing Home.                   At
of prejudice, the court should assume that the petitioner has        approximately 7:00 a.m., November 5, 1988, White left
stated a meritorious constitutional claim.” 785 F.2d at 139          the nursing home with Jacqueline Glenn and walked
(citations omitted). Of course, if the district court finds that     toward the van of Richard Gibson, a friend of Glenn's,
the petitioner has established prejudice, it should proceed to       who was to drive the women home. Glenn testified she
decide the merits of his constitutional claims.                      entered the van through the front passenger door and, as
                                                                     she began to unlock the rear sliding door, White
   Finally, we note the petitioner’s argument that Rule 26(B)        screamed and pushed Glenn into the van. The women
is unconstitutional as applied in Ohio because it deprives           fell onto the floor between the seats. Glenn heard an
indigent, incarcerated, uncounseled inmates due process and          initial shot and heard White shout, "Wait, Rick, wait."
equal protection of the laws. These claims were not raised in        (Tr. 110). According to Glenn, this shot hit White in the
the district court, however. “When a party fails to present an       leg. Glenn told the jury White's assailant entered the van
argument to the district court, we have discretion to resolve        and again shot White, who stated "Oh, Rick." (Tr. 113).
the issue only where the proper resolution is beyond any             Glenn, who received powder burns during the shooting,
doubt, or where injustice might otherwise result.” See               testified she heard three to four shots. She also observed
Enertech Elec., Inc. v. Mahoning County Comm’r, 85 F.3d              the man's face as he left the van.
257, 261 (6th Cir. 1996). We decline, in this instance, to treat
these issues as a matter of initial review.                          In her statement to police immediately after the shooting,
                                                                     Glenn indicated she did not see the man who shot White,
                       CONCLUSION                                    nor did this statement include White's identification of
                                                                     her assailant. Two days later, Glenn went to the police
  We conclude that Ohio criminal defendants have a federal           station to amplify her initial statement. She then told
constitutional right to effective assistance of counsel during       police of White's references to her assailant as "Rick" and
an application for reopening and that the petitioner’s counsel       described the man's clothing. Glenn subsequently
in this case was constitutionally ineffective in failing to file     selected the defendant's picture from an array of five
such an application in a timely fashion, thus constituting           photographs and identified him as the man who shot
                                                                     White.
4      White v. Schotten                           No. 97-4066   No. 97-4066                             White v. Schotten     17

    Richard Gibson, the driver of the van, corroborated          to entertain the claim. See id. In analyzing such a claim, the
    Glenn's testimony but was unable to identify the             inquiry is a narrow one, where the petitioner must "point to a
    assailant. Gibson told the jury that, as White lay           constitutional violation that probably resulted in the
    wounded in the van, she stated her husband fired the         conviction of one who was actually innocent." Ritchie v.
    shots. Euclid police officer Jeffrey Swider responded to     Eberhart, 11 F.3d. 587, 593 (6th Cir.1993); accord Schlup v.
    the nursing home minutes after the shooting. Swider          Delo, 513 U.S. 298, 321 (1997); Murray v. Carrier, 477 U.S.
    testified he asked White who shot her and White              478, 496 (1986). The petitioner argues that the following
    responded, "My husband." (Tr. 180). Sister Mary              evidence shows that he is actually innocent:
    Raphael, a nun at the nursing home, also heard White
    identify her husband as the assailant. White later died in     There were two eyewitnesses to the crime. Richard
    the hospital.                                                  Gibson testified he could not identify the perpetrator.
                                                                   Jackie Glenn identified Mr. White but admitted she told
    Cuyahoga County Coroner Elizabeth Balraj performed an          the police after the incident that she did not see the
    autopsy on White's body. Her examination revealed a            assailant because she was pushed aside, out of the way,
    gunshot wound to the left leg as well as an abdominal          and had her head down. The State’s evidence is
    wound with a perforation of the aorta. Balraj opined           contradicted by the evidence presented by White. Mr.
    White hemorrhaged to death. Barbara Campbell, a                White produced credible evidence at his trial that he was
    member of the coroner's trace evidence department,             in Columbus, Ohio at the time of his ex-wife’s murder.
    testified that gun shot residue on White's palms indicated     In addition to the alibi testimony from his wife, Mr.
    the weapon was fired in close proximity to White.              White introduced testimony from two disinterested
                                                                   witnesses who testified to seeing Mr. White the night
    Kathy Kozel, an assistant at Mount St. Joseph, testified       before and the morning of the murder in Columbus,
    that, as she arrived for work, she observed a man              Ohio. . . . The State of Ohio convicted Mr. White based
    standing outside the nursing home approximately ten            upon his past conduct, bad character, hearsay and
    minutes before the shooting. Kozel stated she was 12-13        prosecutorial misconduct.
    feet from the man and that she looked at his face. Kozel
    did not see the man fire a gun. Three months later, Kozel       We conclude that the petitioner has not made a colorable
    selected the defendant's photo from an array as the man      showing of actual innocence under the Carrier/Schlup
    she saw outside the nursing home.                            standard. As the petitioner acknowledges, this evidence was
                                                                 presented to the jury, which chose to credit the state’s
    Charon Hawkins, the victim's daughter, testified the         evidence over that offered by the petitioner. Although we
    defendant telephoned her mother the evening before she       might agree with the Ohio Court of Appeals’s assessment that
    was killed. According to Hawkins, her mother twice           the prosecutor violated the rules of evidence in this case, there
    refused to speak with the defendant, who finally             is no basis for us to second-guess the jury’s credibility
    threatened "to do something bad" to her mother. (Tr.         determination and its resulting verdict. Accordingly, because
    235). The daughter also averred the defendant beat her       a miscarriage of justice will not result from the court's failure
    mother many times.                                           to review this claim, it does not excuse the petitioner’s failure
                                                                 to comply with state procedural rules. See Ritchie, 11 F.3d at
    Vivian Faylor Jeff, a counselor at the Cuyahoga County       593.
    Witness & Family Violence Center, testified she met
    with White on six to eight occasions and that White was
16    White v. Schotten                            No. 97-4066      No. 97-4066                            White v. Schotten         5

commensurate right to effective assistance from that counsel.        afraid of the defendant. Jeff indicated White had filed a
However, as this court's decision in Manning v. Alexander,           complaint against the defendant and sought a protective
912 F.2d 878, 882 (6th Cir. 1990), made clear, Ohio law does         order and divorce from him. Mabel Jean Edwards, also
not consider an attack on the adequacy of appellate counsel to       a nursing home employee, told the jury she discussed
be proper in a state habeas proceeding. See Manning, 912             White's domestic problems with the defendant. Edwards
F.2d at 882 (citing Manning v. Alexander, 553 N.E.2d 264             averred she "often" saw White with black eyes and
(Ohio 1990); In re: Petition of Brown, 551 N.E.2d 954                bruises on her neck. According to Edwards, White told
(1990)). Furthermore, Murnahan emphatically holds that any           her the defendant once shot at her and a friend.
such attack cannot be considered part of an Ohio post-
conviction matter.                                                   Euclid police officer Patrick Lynch testified the
                                                                     defendant's auto was found north of Columbus on the
   If the application for delayed reconsideration is neither part    northbound side of Interstate I-71 at 2:14 a.m. the day
of a state habeas nor state post-conviction proceeding, it must      after the shooting. The left rear tire on the vehicle was
be a continuation of activities related to the direct appeal         flat. Lynch told the jury that highway patrol reports from
itself. Because a defendant is entitled to effective assistance      the previous day did not refer to the auto. In February
of counsel on direct appeal, see Evitts v. Lucey, 469 U.S. 387,      1989, police arrested the defendant in California and
396 (1985), such an individual must be accorded effective            brought him back to Cleveland for trial.
assistance of counsel throughout all phases of that stage of the
criminal proceedings. The failure of the Ohio Public                 The defendant denied killing his former wife and told the
Defender to offer such constitutionally-mandated counsel             jury he was in Columbus at the time of the shooting. He
excuses the failure of the petitioner to abide by the timing         claimed he spent the late afternoon of November 4, 1988
requirements of applicable procedural rules.                         with his current wife, Kimberly Fox White, until she
                                                                     went to work that night. According to the defendant, he
  Therefore, upon establishing that he was actually prejudiced       left for Cleveland at 7:00 p.m. to visit relatives after
by any ineffective representation, the petitioner is entitled to     learning about the death of an uncle. The defendant
present to a federal court for merit review those claims that        stated his auto had a flat tire on Interstate 71 just outside
should have been brought to the attention of the Ohio state          Columbus and he walked to a nearby convenience store
courts throughout the course of the petitioner's legal battles.      to phone for assistance. Unable to secure towing services,
See Coleman, 501 U.S. at 750. Having found no cause for              the defendant went to a laundromat/restaurant named
White’s default, neither the magistrate judge nor the district       "Dirty Dungarees" where he met a woman, Rhonda
judge addressed the prejudice prong. Accordingly, unless             Simon. The defendant introduced himself to her as
there is another basis upon which to excuse the petitioner’s         "Tony Love", a name he used as a radio disc jockey. The
procedural default, we must remand to the district court to          woman later drove him to his apartment where she left
decide whether the petitioner can establish prejudice.               her telephone number on a magazine. The magazine was
                                                                     introduced into evidence. The defendant gave Simon a
   White claims that there is such an alternative basis to           record album for bringing him home. The defendant
excuse his procedural default, arguing that even if this court       testified that, after Brown left, a neighbor, Andrea Bell,
finds that he has not shown cause and prejudice, the                 visited him. The defendant asked her to order a pizza for
procedural default should nonetheless be excused because a           him from her apartment since his telephone was not
fundamental miscarriage of justice would result from a failure       working.
6      White v. Schotten                           No. 97-4066   No. 97-4066                             White v. Schotten     15

    According to the defendant, he and his wife later tried to   assistance of appellate counsel in his direct appeal, it is clear
    retrieve his auto but the battery was dead. They spent the   from other portions of his brief, the affidavit from his counsel
    rest of the evening watching videotaped movies. The          at the Ohio Public Defender’s Office, his arguments before
    defendant told the jury he awoke the morning of the          the state courts, and simple logic that the reason the
    slaying at 8:15 and went on errands with his wife. He        application for reopening was filed three years late was the
    claimed that, as he left the apartment complex on            failure of his attorney to file that pleading in compliance with
    errands, he spoke with Bell about the pizza not arriving     the rule. As evidenced in the present case and as noted in
    the previous night. Later that day the defendant learned     Paris v. Turner, No. 97-4129, 1999 WL 357815 (6th Cir.
    his former wife had been killed. He acknowledged he          (Ohio) May 26, 1999), the public defender’s office has
    left for California after police visited his mother in       repeatedly failed to preserve the right of criminal defendants
    Cleveland. The defendant stated the police told his          to challenge the constitutionality of their convictions due to
    mother they would shoot him.                                 its disregard, whether intentional or because of inadequate
                                                                 funding and staffing, of filing deadlines and procedural
    Rhonda Simon corroborated the defendant's testimony as       barriers.
    to meeting "Tony Love" at 8:00 p.m. on November 4,
    1988 at "Dirty Dungarees." She verified that he told her        Without question, an attorney's failure or refusal to abide by
    of his flat tire and that she drove him to his apartment     established time deadlines in handling a client's appeal is
    where she left her phone number on a magazine. Simon         conduct falling below the minimal standards of competency
    averred she arrived at her house at approximately 10:00      that federal case law has imposed upon counsel to satisfy
    p.m. Andrea Bell also agreed she visited the defendant       constitutional safeguards. See Strickland v. Washington, 466
    at his apartment "on a Friday evening in early November"     U.S. 668, 698 (1984) (a finding of ineffective assistance of
    and learned of his flat tire. According to Bell, she spoke   counsel requires first that an attorney's representation fall
    with the defendant the next morning between 8:30 and         below an objective standard of reasonableness). See also
    9:00 as he left the apartment complex with his wife in her   Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998)
    auto. Kimberly Fox White corroborated the defendant's        (failure to perfect a direct appeal in derogation of a request to
    testimony and claimed he was with her in the early           do so is a per se violation of the Sixth Amendment, regardless
    morning hours of November 5, 1988.                           of whether the appeal would have been successful). In fact,
                                                                 such deficiencies have been held to constitute ineffective
    Private investigator John Younkin told the jury that the     assistance of counsel per se. See Rodriguez v. United States,
    distance from defendant's auto on Interstate 71 to the       395 U.S. 327, 330 (1969) ("Those whose right to appeal has
    nursing home where White was shot equaled 139.3              been frustrated should be treated exactly like any other
    miles. According to Younkin, it requires two hours and       appellant; they should not be given an additional hurdle to
    nineteen minutes to drive this distance at the posted        clear just because their rights were violated at some earlier
    speed limits.                                                stage of the proceedings.").
    The defendant offered two character witnesses on his            The State of Ohio argues, nevertheless, that a petitioner
    behalf. Glenn Frazier, a pastor at the Gospel Palace         such as White has no constitutional right to counsel at any
    Church and manager of a radio station where defendant        stage of criminal proceedings beyond a direct appeal as of
    hosted an inspirational program, testified to the            right. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).
    defendant's honesty. Bishop F.E. Perry stated the            Without a right to counsel, the petitioner also has no
14   White v. Schotten                            No. 97-4066      No. 97-4066                           White v. Schotten      7

cause to excuse filing of an application for reopening over one      defendant had been a minister at their church and was a
year after journalization of appellate judgment); State v.           "family" man. Perry described the defendant as truthful.
Klein, No. 49260 (Ohio App. 8 Dist., March 15, 1994)
(holding pro se status and ignorance of law did not constitute       In rebuttal, the state called Deborah Brown who swore
“good cause” to excuse filing of application for reopening           she spoke with the defendant in Cleveland on the
five months after journalization and two months after                afternoon before the shooting between 3:40 p.m. and
effective date of new Rule 26(B)); State v. Wright, No. 93 CA        3:55 p.m. The defendant allegedly asked Brown whether
2110, 1994 WL 398805 (Ohio App. 4 Dist., July 29, 1994)              she had seen White. Patricia Laster also averred she saw
(holding state’s failure to respond to an application for            the defendant in his auto between 3:00 p.m. and 4:00
reopening constitutes “good cause”); State v. Fields, No. 95         p.m. on November 4, 1988. Both women testified they
CA-08-048 (Ohio App. 5 Dist., April 21, 1994) (same); State          had observed defendant strike White on previous
v. Wright, No. 93 CA 2110, 1994 WL 398805 (Ohio App. 4               occasions.
Dist., July 29, 1994) (same). Nonetheless, we recognize that
the rule is relatively new and acknowledge that it may take        State v. White, No. 1991 WL 8581 at *1-*3 (Ohio Ct. App.,
some time for the Ohio courts to achieve consensus.                Jan. 31, 1991), aff'd, 647 N.E.2d 787 (Ohio 1995).

   In any event, we need not focus on whether the good cause          On May 12, 1989, a jury found White guilty of one count
exception to Rule 26(B) constitutes an independent and             of aggravated murder with a firearm specification and two
adequate state ground, because we conclude, upon                   counts of felonious assault with firearm specifications. On
consideration of the fourth Maupin factor, that the petitioner     May 15, 1989, the trial court sentenced him to 20 years to life
has established cause for his failure to follow the state          for aggravated murder, three years for the firearms
procedural rule. See Coleman v. Thompson, 501 U.S. 722,            specification, and 8-to-15 years on each count of felonious
750 (1991) (“In all cases in which a state prisoner has            assault, all to be served consecutively. On January 31, 1991,
defaulted his federal claims in state court pursuant to an         the Ohio Court of Appeals overruled the petitioner’s
independent and adequate state procedural rule, federal            assignments of error, but sua sponte ordered the trial court to
habeas review of the claims is barred unless the prisoner can      vacate one of his convictions for felonious assault under the
demonstrate cause for the default and actual prejudice as a        allied offenses doctrine. The court of appeals’s decision was
result of the alleged violation of federal law, or demonstrate     journalized on February 11, 1991.
that failure to consider the claims will result in a fundamental
miscarriage of justice.”) The district court, through the             Although the petitioner obtained representation from the
adoption of the magistrate judge’s report and                      Office of the Ohio Public Defender in 1991, the attorney
recommendation, held that ineffective assistance of appellate      assigned to White’s case did not file an application for
counsel did not serve as cause because”[c]ounsel’s failure to      reopening alleging that his appellate counsel had rendered
file a timely application for reopening because he had a heavy     ineffective assistance in failing to raise four assignments of
case load does not constitute an objective factor external to      error until three years later, on February 16, 1994. The court
the defense.” We disagree. The external cause for the              of appeals denied White’s application for reopening, finding
petitioner’s non-compliance with Rule 26(B) is provided by         it to be untimely based on Ohio App. R. 26(B), which
the continued deficiencies in the office of the Ohio Public        provides:
Defender. Although the petitioner states in his appellate brief
that the cause for his procedural default was ineffective            A defendant in a criminal case may apply for reopening
                                                                     of the appeal from the judgment of conviction and
8      White v. Schotten                            No. 97-4066    No. 97-4066                            White v. Schotten     13

    sentence, based on a claim of ineffective assistance of        cert. denied, 120 S.Ct. 110 (1999), “[t]he alternative holding
    appellate counsel. An application for reopening shall be       thus does not require us to disregard the state court’s finding
    filed in the court of appeals where the appeal was             of procedural bar.”
    decided within ninety days from journalization of the
    appellate judgment unless the application shows good              We turn next to the third Maupin factor, which requires us
    cause for filing at a later time.                              to consider whether the state procedural rule is an adequate
                                                                   and independent state ground to foreclose federal relief. Such
  The petitioner attached to his application for reopening an      a rule is adequate if it is regularly or consistently applied by
affidavit from his attorney stating that he had been assigned      the state court, see Johnson v. Mississippi, 486 U.S. 578, 587
White’s case in 1991 but had been unable to review the merits      (1988), and is independent if it does not "depend[ ] on a
of the case until late 1993, as a result of his office’s           federal constitutional ruling." Ake v. Oklahoma, 470 U.S. 68,
“overwhelming caseload” and his own “personal heavy                75 (1985); see also Mapes v. Coyle, 171 F.3d 408, 421 (6th
caseload.” White’s counsel argued that his heavy caseload          Cir. 1999), petition for cert. filed, 68 USLW 3116 (July 29,
served as “good cause,” as that phrase is used in Rule 26(B),      1999) No. 99-203) (“[T]he fact that a petitioner has not
to excuse his tardiness. The Ohio Court of Appeals rejected        complied with a state procedural rule cannot bar federal
that argument, stating that “an applicant’s ignorance of App.      review of constitutional claims if the state rule is not ‘firmly
R. 26(B) or its procedural requirements will not establish         established and regularly followed.’”) (internal quotation
good cause for the untimely filing of an application for           marks and citation omitted)).
reopening,” and that “an ‘office’s overwhelming caseload and
my personal heavy caseload’ does not establish good cause            White argues that the “good cause” requirement of Ohio’s
for the untimely filing of an application for reopening as         App. R. 26(B) does not constitute an adequate and
brought pursuant to App. R. 26(B).” The Ohio Supreme               independent state ground because it is neither firmly
Court affirmed that decision, see State v. White, 647 N.E.2d       established nor uniformly applied by the Ohio courts. In
787 (Ohio 1995), and the United States Supreme Court denied        support of his argument, White cites to instances in which
certiorari. See White v. Ohio, 516 U.S. 892 (1995).                courts have allowed delays well after the 90-day deadline and
                                                                   also argues that Rule 26(B) does not provide any clear
  White then filed a petition for writ of habeas corpus in the     guidelines for determining when a petitioner can file his
United States District Court for the Northern District of Ohio,    petition beyond the 90-day filing period.
raising the following claims:
                                                                     A review of the Ohio court of appeals cases attached to
    (1) violation of petitioner’s rights to due process and a      Petitioner’s brief reveals that the state courts have not
    fair trial as guaranteed by the Fifth, Sixth, and Fourteenth   achieved consensus on what constitutes “good cause” to
    Amendments to the United States Constitution on the            excuse non-compliance with Rule 26(B). See, e.g., State v.
    grounds of prosecutorial misconduct; (2) petitioner’s          McCarter, No. 62346 (Ohio App. 8 Dist., Aug. 12, 1994)
    Fifth and Fourteenth Amendment rights against self-            (holding pro se status and ignorance of the law did not
    incrimination, to due process and a fair trial were denied     constitute “good cause” to excuse filing of application for
    when the trial court repeatedly allowed introduction of        reopening almost three years after journalization and seven
    other acts evidence and extrinsic evidence of petitioner’s     months after effective date of new Rule 26(B)); State v.
    character to be presented to the jury; (3) petitioner’s        Nitenson, No. 91 CA 796, 1994 WL 69894 (Ohio App. 4
    Sixth and Fourteenth Amendment rights to confrontation         Dist., Feb. 24, 1994) (holding pro se status constitutes good
12       White v. Schotten                                 No. 97-4066         No. 97-4066                            White v. Schotten        9

  acts testimony, hearsay evidence, and extrinsic evidence                       and cross-examination were denied when the prosecution
  to impeach defendant’s character. In addition, this court                      was permitted to introduce hearsay evidence in the form
  addressed the issue of prosecutorial misconduct in light                       of prior statements made by the decedent; and (4)
  of the harmless error rule (Crim. R. 52(A)) and held that:                     petitioner’s Sixth and Fourteenth amendment rights to
  “Although the prosecutor repeatedly violated the rules of                      effective assistance of appellate counsel were denied
  evidence in this case, we are compelled to find these                          when: [a] appellate counsel failed to raise an issue on
  errors harmless in light of the overwhelming evidence of                       appeal that but for counsel’s failure there is a reasonable
  the defendant’s guilt. State v. Abrams (1974), 39 Ohio                         probability that the result of the appeal would have been
  St.2d 53; Chapman v. California (1967), 386 U.S.                               different and, [b] Ohio provides no remedy for
  18. . . . ”                                                                    vindication of a denial of the defendant’s right to the
                                                                                 effective assistance of counsel.
Id. at 4-5.
                                                                                 The case was referred to a magistrate judge, who issued a
   White argues that the appeals court’s alternative holding –                 report and recommended that the petition be dismissed
that his claims would be barred by res judicata even if they                   because the claims were procedurally defaulted under Ohio
were not procedurally barred -- constitutes a decision on the                  App. Rule 26(B) and because the petitioner was unable to
merits 1and that his claims, therefore, are not procedurally                   show cause and prejudice for the default. Over the petitioner’s
barred. We cannot agree. As the Supreme Court has                              objections, the district court adopted the magistrate judge’s
explained, “a state court need not fear reaching the merits of                 report and recommendation and dismissed the petition based
a federal claim in an alternative holding. By its very                         on procedural default. This appeal followed.
definition, the adequate and independent state ground doctrine
requires the federal court to honor a state holding that is a                                           ANALYSIS
sufficient basis for the state court’s judgment, even when the
state court also relies on federal law.” Harris v. Reed, 489                     White appeals the district court’s dismissal of his habeas
U.S. 255, 264 n.10 (1989) (emphasis in original); accord                       corpus petition on the basis of procedural default. In
Sochor v. Florida, 504 U.S. 527, 533 (1992). As we                             considering a district court’s disposition of a habeas petition,
concluded in Coe v. Bell, 161 F.3d 320, 330 (6th Cir. 1998),                   we review the district court’s legal conclusion de novo, and its
                                                                               factual findings for clear error. See Carpenter v. Mohr, 163
                                                                               F.3d 938, 942-43 (6th Cir. 1998), cert. granted, 120 S.Ct. 444
     1
                                                                               (1999).
      He argues further that his application for reopening was a nullity
because the court held that it had already decided his claims on direct           Under Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986),
appeal. A review of petitioner’s direct appeal brief and the appeals           this circuit utilizes the following four-part analysis when the
court’s resolution reveals that the court had indeed decided the merits of
petitioner’s claims regarding the admission of other acts testimony,           state argues that a federal habeas claim has been procedurally
hearsay evidence, and extensive evidence to impeach his credibility, but       defaulted in state court: (1) whether there is a procedural rule
those claims had only been framed and ruled upon as violations of state        that is applicable to the petitioner's claim and whether the
law. The import of the claim raised in the application for reopening was       petitioner failed to follow this rule; (2) whether the state
that White’s appellate counsel rendered ineffective assistance in failing      courts actually enforced the state procedural rule; (3) whether
to raise those claims as violations of federal law. Indeed, the petitioner     the state procedural rule is an adequate and independent state
does not contend that he raised those claims as violations of federal law
in his direct appeal, but instead that this court should deem it so based on   ground to foreclose federal relief; and if so (4) whether the
the court of appeals’s language in denying the application for reopening.
10    White v. Schotten                             No. 97-4066      No. 97-4066                           White v. Schotten     11

petitioner has established cause for his failure to follow the       until February 16, 1994, more than three years after
rule and prejudice by the alleged constitutional error.              journalization of the appellate judgment, one year and eleven
                                                                     months after the announcement of State v. Murnahan (1992),
   The petitioner contends that none of the first three factors      63 Ohio St. 3d 60, and more than seven months after the
of the Maupin test have been met. He also argues, in the             effective date of App. R. 26(B). On its face, the application
alternative, that even if those three factors have been satisfied,   for reopening is untimely.” State of Ohio v. Frederick White,
he is able to show cause and prejudice for his default under         No. 57944 slip op. at 1-2 (Ohio Ct. App., Oct. 19, 1994). We
the fourth factor, thereby entitling him to federal court review     thus conclude that there was an applicable rule in place and
of the merits of his habeas corpus claims. He also argues that       that White failed to follow it.
the court may excuse his procedural default because failure to
address the merits of his constitutional claims will result in a       Turning to the second Maupin factor, we must consider
fundamental miscarriage of justice. We consider each of the          whether the state courts actually enforced the state procedural
four Maupin factors in turn, addressing petitioner’s arguments       rule. The Ohio Court of Appeals held that it was compelled
in the process.                                                      to deny the petitioner’s application for reopening because it
                                                                     was untimely under Rule 26(B) and no good cause existed to
  The first Maupin factor requires us to consider whether            excuse that untimeliness. The court also said:
there is a procedural rule that is applicable to the petitioner's
claim and whether he failed to follow that rule. The petitioner        Notwithstanding the fact that the application for
argues that there was no procedural rule applicable to his             reopening is untimely, a substantive review of the
claim because Ohio’s App. R. 26(B) was not in effect at the            applicant’s supporting memorandum clearly
time his direct appeal was decided on January 31, 1991, and            demonstrates that res judicata prevents the reopening of
he filed an application to reopen his appeal as soon as the            the appellate judgment that was rendered in State v.
claim of appellate ineffectiveness was discovered. We find             White (Jan. 31, 1991), Cuyahoga App. No. 57944,
this argument unmeritorious. Although White is correct that            unreported. The doctrine of res judicata prohibits a
prior to July 1, 1993, Rule 26 did not contain a distinct              defendant from relitigating any defense or claim of error
provision for ineffective assistance of counsel claims, it did         that has been previously raised on direct appeal. State v.
set forth a ten-day time limit for the "application for                Perry, 10 Ohio St. 2d 175 (Ohio 1967). . . . In an attempt
reconsideration of any cause or motion submitted on appeal."           to reopen the appellate judgment that was rendered by
Following the Ohio Supreme Court's recommendation that the             this Court, the applicant raises four proposed
legislature adopt an amendment to better serve defendants              assignments of error which appellate counsel allegedly
who allege ineffective assistance of appellate counsel, see            failed to argue upon appeal. These four proposed
State v. Murnahan, 584 N.E.2d 1204 (Ohio 1992), Rule 26(B)             assignments of error address the following issues: (1)
was enacted to provide a 90-day limit for ineffective                  other acts testimony (Evid. R. 404); (2) hearsay evidence
assistance of appellate counsel claims.                                (Evid. R. 801); (3) extensive evidence to impeach
                                                                       defendant’s character (Evid. R. 608); and (4)
  Rule 26(B) is clearly applicable to the petitioner's claim and       prosecutorial misconduct. This court, however, has
would have required White to file his motion to reopen within          previously examined upon direct appeal each of the
90 days of its effective date, July 1, 1993. However, as the           applicant’s four proposed assignments of error. Through
Ohio Court of Appeals noted in denying White’s motion to               the fourth, fifth, and sixth assignments of error as raised
reopen, “[t]he application for reopening ... was not filed ...         on direct appeal, this Court reviewed the issues of other
