[Cite as State v. Burst, 2011-Ohio-2253.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 94080




                                     STATE OF OHIO
                                                  PLAINTIFF-APPELLEE

                                            vs.

                                     WALTER BURST
                                                  DEFENDANT-APPELLANT




                                    JUDGMENT:
                                APPLICATION DENIED


                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-519920
                                Application for Reopening
                                    Motion No. 442170


        RELEASE DATE: May 9, 2011
FOR APPELLANT

Walter Burst, pro se
Inmate No. 572-963
Marion Correctional Institution
P.O. Box 57
Marion, OH 43301-0057

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113




KATHLEEN ANN KEOUGH, J.:

     {¶ 1} Walter Burst has filed a timely application for reopening

pursuant to App.R. 26(B).         He is attempting to reopen the appellate

judgment that was rendered in State v. Burst, Cuyahoga App. No. 94080,

2010-Ohio-5773, which affirmed his conviction for one count of aggravated

robbery, one count of robbery, two counts of kidnapping, and one count of
theft.     For the following reasons, we decline to reopen Burst’s original

appeal.

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

must demonstrate that appellate counsel’s performance was deficient and that, but for

counsel’s deficient performance, the result of his appeal would have been different. State v.

Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456. Specifically, Burst must establish

that “there is a genuine issue as to whether he was deprived of the assistance of counsel on

appeal.”    App.R. 26(B)(5).

         {¶ 3} In State v. Reed, supra at 458, the Ohio Supreme Court held that “the two-

prong analysis found in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674, is the appropriate standard to assess a defense request for reopening under

App.R. 26(B)(5).     [Applicant] must prove that his counsel was deficient for failing to raise

the issue he now presents, as well as showing that had he presented those claims on appeal,

there was a ‘reasonable probability’ that he would have been successful.        Thus, [applicant]

bears the burden of establishing that there was a ‘genuine issue’ as to whether he has a

‘colorable claim’ of ineffective assistance of counsel on appeal.”      State v. Spivey, 84 Ohio

St.3d 24, 1998-Ohio-704, 701 N.E.2d 696.

         {¶ 4} It is well settled that appellate counsel is not required to raise and argue

assignments of error that are meritless. Jones v. Barnes (1983), 463 U.S. 745, 103 S.Ct.
3308, 77 L.Ed.2d 987.     Further, appellate counsel cannot be considered ineffective for failing

to raise every conceivable assignment of error on appeal.       Id.; State v. Grimm, 73 Ohio St.3d

413, 1995-Ohio-24, 653 N.E.2d 253, State v. Campbell, 69 Ohio St.3d 38, 1994-Ohio-492,

630 N.E.2d 339.

       {¶ 5} In Strickland v. Washington, supra, the United States Supreme Court stated that

a court’s scrutiny of an attorney’s work must be deferential.     The court stated further that it is

tempting for a defendant–appellant to second-guess his attorney after conviction and appeal,

and that it would be “all too easy” for a court to conclude that a specific act or omission was

deficient when examining the matter in hindsight.      Id. at 689.    Accordingly, “a court must

indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy.”        Id.   Finally,

the United States Supreme Court has upheld the appellate attorney’s discretion to decide which

issues he or she believes are the most fruitful arguments and the importance of winnowing out

weaker arguments on appeal to focus on one central issue or, at most, a few key issues.

Jones, supra.

       {¶ 6} Burst has not raised any proposed assignments of error in support of his claim

of ineffective assistance of appellate counsel.   He simply makes three assertions in support of

his claim of ineffective assistance of appellate counsel: (1) an alleged conflict of         interest
between the trial judge and a juror; (2) the failure of defense counsel to produce “live camera

footage” of a car or van; and (3) an alleged “secret meeting” in the judge’s chambers.

Burst’s failure to state any proposed assignments of error renders his application for reopening

fatally defective.

       {¶ 7} As this court has previously stated, “[applicant] inserts in his application

statements indicating that some witnesses committed perjury and complains that his trial and

appellate counsel did not raise the issue of the truthfulness of their testimony.   He does not

identify where in the record this purported perjury occurred.      He also has not set forth a

proposed assignment of error related to his assertions.

       {¶ 8} “This court has previously held that the failure to clearly state proposed

assignments of error is ‘fatally defective.’   See, e.g. State v. Lewis, Cuyahoga App. Nos.

88627, 88628, and 88629, 2007-Ohio-3640, reopening disallowed, 2008-Ohio-679, at ¶17;

State v. Jackson, Cuyahoga App. No. 88345, 2007-Ohio-2925, reopening disallowed,

2007-Ohio-5431, at ¶3.”      State v. Fryerson, Cuyahoga App. No. 91960, 2009-Ohio-4227,

reopening disallowed, 2010-Ohio-1852, Motion No. 428670, at ¶7.

       {¶ 9} Notwithstanding the aforesaid fatal defect, a substantive review of the three

assertions made by Burst, even if considered as assignments of error, fails to demonstrate that

appellate counsel was ineffective.
       {¶ 10} First, Burst fails to demonstrate through citation to the record that the trial judge

was biased because she knew a juror.           State v. Stewart, Cuyahoga App. No. 93428,

2010-Ohio-3869, reopening disallowed, 2011-Ohio-1667, Motion No. 439406.              In addition,

the assertion that Burst was not involved in the theft of a car or van was previously addressed

upon direct appeal in the assignments of error regarding the manifest weight and sufficiency of

the evidence.   Thus, any proposed assignment of error pertaining to the theft of a car or van

is barred from further review by the doctrine of res judicata. State v. Murnahan (1992), 63

Ohio St.3d 60, 584 N.E.2d 1204; State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104;

State v. Williams (Mar. 4, 1991), Cuyahoga App. No. 57988, reopening disallowed (Aug. 15,

1994), Motion No. 252164.

       {¶ 11} Finally, Burst fails to allege any prejudicial error as a result of the trial judge’s

meeting in chambers with the prosecutor and a co-defendant’s trial counsel.             The mere

recitation of a proposed assignment of error, without a demonstration from the record of any

prejudicial error, is insufficient to meet an applicant’s burden of demonstrating that his

appellate counsel was deficient for failing to raise the issue and a reasonable probability the

claim would have been successful on appeal. State v. Harris, Cuyahoga App. No. 90699,

2008-Ohio-5873, reopening disallowed, 2009-Ohio-5962, Motion No. 418801; State v.

Hawkins,    Cuyahoga      App.    No.    90704,     2008-Ohio-6475,      reopening     disallowed,

2009-Ohio-2246, Motion No. 417851.
       {¶ 12} Burst has not meet the standard for reopening.   Accordingly, his application

for reopening is denied.




KATHLEEN ANN KEOUGH, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
JAMES J. SWEENEY, J., CONCUR
