            RECOMMENDED FOR FULL-TEXT PUBLICATION
                 Pursuant to Sixth Circuit Rule 206                      2    Bonilla v. Hurley                           No. 03-3153
         ELECTRONIC CITATION: 2004 FED App. 0162P (6th Cir.)
                     File Name: 04a0162p.06                                                  _________________
                                                                                                  COUNSEL
UNITED STATES COURT OF APPEALS
                                                                         ON BRIEF: James P. Fleisher, BIESER, GREER &
                   FOR THE SIXTH CIRCUIT                                 LANDIS, Dayton, Ohio, for Appellant. M. Scott Criss,
                     _________________                                   OFFICE OF THE ATTORNEY GENERAL, Columbus,
                                                                         Ohio, for Appellee.
 EDUARDO BONILLA ,                X
                                                                                             _________________
         Petitioner-Appellant, -
                                   -
                                                                                                 OPINION
                                   -  No. 03-3153
            v.                                                                               _________________
                                   -
                                    >
                                   ,                                        PER CURIAM. Eduardo Bonilla, an Ohio prisoner
 PAT HURLEY, Warden,               -                                     proceeding through counsel, appeals a magistrate judge’s
         Respondent-Appellee. -                                          judgment dismissing his petition for a writ of habeas corpus
                                  N                                      filed pursuant to 28 U.S.C. § 2254. The parties have waived
      Appeal from the United States District Court                       oral argument and this panel unanimously agrees that oral
       for the Southern District of Ohio at Dayton.                      argument is not needed in this case. Fed. R. App. P. 34(a).
   No. 02-00334—Michael R. Merz, Magistrate Judge.
                                                                            On October 9, 1999, a jury found Bonilla guilty of
                    Submitted: March 26, 2004                            complicity to aggravated murder, conspiracy to aggravated
                                                                         murder, complicity to murder, conspiracy to murder,
                Decided and Filed: April 27, 2004*                       complicity to kidnaping, and complicity to obstructing justice.
                                                                         On November 16, 1999, Bonilla was sentenced to serve life
Before: GUY and GILMAN, Circuit Judges; BARZILAY,                        imprisonment for complicity to aggravated murder,
                    Judge.**                                             conspiracy to aggravated murder, and conspiracy to murder;
                                                                         fifteen years to life imprisonment for complicity to murder;
                                                                         ten years of imprisonment for complicity to kidnaping; and
                                                                         five years of imprisonment for complicity to obstructing
                                                                         justice, to be served consecutively. The Ohio Court of
                                                                         Appeals, Second Appellate District, affirmed Bonilla’s
    *                                                                    convictions on March 2, 2001. The Ohio Supreme Court
      An abbreviated order of this opinion was originally issued as an
“unpublished decision” filed on April 27, 2004. The court is now
                                                                         denied Bonilla’s motion for leave to file a delayed appeal on
substituting this more fully reasoned opinion which is recommended for   July 25, 2001.
full-text publication.
                                                                           After unsuccessfully pursuing a post-conviction application
    **
      The Honorable Judith M. Barzilay, United States Judge for the      to reopen his direct appeal, Bonilla, proceeding pro se, filed
Court of International Trade, sitting by designation.

                                  1
No. 03-3153                            Bonilla v. Hurley      3    4     Bonilla v. Hurley                            No. 03-3153

the instant petition for a writ of habeas corpus, in which he      prisoner, he is only permitted four hours per week “for legal
asserted six grounds for relief.          The district court       research” and is provided “no assistance with preparation of
subsequently appointed counsel to represent Bonilla because        legal documents.” On July 25, 2001, the Ohio Supreme Court
English is his second language.                                    denied Bonilla’s motion for leave to file a delayed appeal in
                                                                   a form entry.
  The parties consented to have a magistrate judge exercise
jurisdiction over the case pursuant to 28 U.S.C. § 636.              This case turns upon whether the Ohio Supreme Court
Thereafter, the magistrate judge dismissed Bonilla’s habeas        entry denying Bonilla’s motion for leave to file a delayed
corpus petition, and subsequently granted his application for      appeal constitutes a procedural ruling sufficient to bar federal
a certificate of appealability as to the following issue:          court review of Bonilla’s habeas corpus petition. Upon
“whether Petitioner is barred from merit consideration of his      examination of the Ohio Supreme Court Rules, we conclude
habeas petition by his procedural default in failing to timely     that it does. The Ohio Supreme Court Rules require a motion
appeal to the Ohio Supreme Court.” Bonilla filed a timely          for a delayed appeal to state “the date of entry of the
appeal. The parties have waived oral argument.                     judgment being appealed and adequate reasons for the delay.”
                                                                   Ohio Sup. Ct. R. II, Section 2(A)(4)(a). In addition, the
  Bonilla’s habeas corpus petition was filed after the effective   motion must be accompanied by a supporting affidavit and a
date of the Antiterrorism and Effective Death Penalty Act          “copy of the decision being appealed.” Id. A motion for a
(AEDPA). Therefore, our review of this case is governed by         delayed appeal is not required to contain the actual claims and
the AEDPA’s provisions. Mason v. Mitchell, 320 F.3d 604,           supporting arguments sought to be presented on appeal. Id.
613 (6th Cir. 2003).                                               Instead, only when “the Supreme Court grants a motion for
                                                                   delayed appeal,” is the appellant required to “file a
  All six of Bonilla’s grounds for relief were raised on direct    memorandum in support of jurisdiction.” Ohio Sup. Ct. R. II,
appeal before the Ohio Court of Appeals. The Ohio Court of         Section 2(A)(4)(c). Thus, the applicable Ohio court rules
Appeals affirmed Bonilla’s convictions on March 2, 2001.           indicate that the denial of a motion for a delayed appeal is a
Bonilla had forty-five days following the court of appeal’s        procedural ruling, not a ruling on the merits. Indeed, this
decision, or until April 16, 2001, to file an appeal with the      court has previously reached this conclusion, albeit in
Ohio Supreme Court. See Ohio Sup. Ct. R. II, § 2(A)(1)(a).         unpublished opinions. See Hall v. Huffman, No. 98-3586,
On June 11, 2001, after expiration of the 45-day appeal            2000 WL 1562821, at *3 (6th Cir. Oct. 11, 2000)
period, Bonilla filed a motion for leave to file a delayed         (unpublished); Shabazz v. Ohio, No. 97-3085, 1998 WL
appeal, which is permitted by the Ohio Supreme Court Rules         384559, at *1 (6th Cir. June 18, 1998) (unpublished).
upon a demonstration of “adequate reasons for the delay.”
See Ohio Sup. Ct. R. II, § 2(A)(4)(a). The reasons offered by        We therefore conclude that Bonilla’s grounds for relief
Bonilla for his failure to file a timely notice of appeal          have been procedurally defaulted. See Simpson v. Jones, 238
included his pro se status because “[d]ue to indigence, [he]       F.3d 399, 406 (6th Cir. 2000). Bonilla failed to file a timely
was forced to terminate the representation of his counsel,” his    notice of appeal with the Ohio Supreme Court and his motion
inability to obtain a complete copy of his trial transcripts       for leave to file a delayed appeal was denied by that court
before the expiration of the 45-day appeal period, the fact that   apparently because he failed to demonstrate adequate reasons
English is his second language and he has “great difficulty        for his failure to file a timely notice of appeal or to otherwise
with reading and writing the lenguage [sic],” and as an Ohio       comply with the provisions of Ohio Sup. Ct. R. II, Section
No. 03-3153                             Bonilla v. Hurley       5    6    Bonilla v. Hurley                            No. 03-3153

2(A)(4). Where a state court is entirely silent as to its reasons    Ohio Supreme Court is insufficient to establish cause to
for denying requested relief, we assume that the state court         excuse his procedural default. See Hannah v. Conley, 49 F.3d
would have enforced any applicable procedural bar. Simpson           1193, 1197 (6th Cir. 1995). Second, Bonilla’s ignorance of
v. Sparkman, 94 F.3d 199, 203 (6th Cir. 1996).                       the law and procedural requirements for filing a timely notice
                                                                     of appeal is insufficient to establish cause to excuse his
   “A petitioner procedurally defaults claims for habeas relief      procedural default. See id. Furthermore, Bonilla’s claim that
if the petitioner has not presented those claims to the state        he lacked notice of the procedural requirements for filing an
courts in accordance with the state’s procedural rules.” Jones,      appeal to the Ohio Supreme Court is specious in light of the
238 F.3d at 406. When a “state prisoner has defaulted his            memorandum in support of his motion for leave to file a
federal claims in state court pursuant to an independent and         delayed appeal that he filed with the Ohio Supreme Court on
adequate state procedural rule, federal habeas review of the         direct review. In his memorandum, Bonilla referred to and
claims is barred unless the prisoner can demonstrate cause for       acknowledged the 45-day time period during which he was
the default and actual prejudice . . . or demonstrate that failure   required to file a timely appeal with the supreme court and
to consider the claims will result in a fundamental miscarriage      offered reasons to excuse his failure to file a timely appeal.
of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Since both cause and prejudice must be shown to excuse a               Third, Bonilla’s mistaken belief that he required a complete
procedural default, the failure to establish cause eliminates the    copy of his trial transcripts prior to filing a notice of appeal
need to consider prejudice. Murray v. Carrier, 477 U.S. 478,         with the Ohio Supreme Court does not establish cause to
494-95 (1986).                                                       excuse his procedural default. See id. Fourth, the fact that
                                                                     Bonilla’s time in the prison law library was limited to four
   In order to establish cause, a habeas corpus petitioner must      hours per week in insufficient to establish cause to excuse his
show that “some objective factor external to the defense”            procedural default. Additionally, Bonilla does not indicate
prevented the petitioner’s compliance with a state procedural        why he required additional time to conduct legal research and
rule. Id. at 488. As cause to excuse the procedural default of       how his limited law library time prevented him from filing a
his grounds for relief, Bonilla argues that he was unable to         timely notice of appeal. Fifth, Bonilla’s unfamiliarity with
file a timely notice of appeal to the Ohio Supreme Court             the English language is insufficient to establish cause to
because he was forced to proceed pro se due to the “sudden,          excuse his procedural default because such alleged
unexpected withdrawal of state appellate counsel,” he was            unfamiliarity is not “external to [his] defense.” See Murray,
“not at all versed in the art of appellate legal practice and was    477 U.S. at 488. Moreover, the record indicates that Bonilla
not aware of the rules relating to the filing of a Notice of         was able to file a motion for a delayed appeal with supporting
Appeal,” he was unable to obtain a complete copy of his trial        memorandum, an affidavit of indigency, and a notice of
transcripts prior to the expiration of the 45-day period             appeal before the Ohio Supreme Court despite his alleged
provided for timely appeals to the Ohio Supreme Court, the           unfamiliarity with the English language.
prison where he was incarcerated limited his legal research
time to four hours per week, and he was unfamiliar with the            In addition, Bonilla did not supplement his claims of
English language.                                                    constitutional error with a colorable showing of actual
                                                                     innocence so as to demonstrate a fundamental miscarriage of
  None of Bonilla’s arguments establish cause to excuse his          justice which would permit review of his defaulted claims
procedural default. First, Bonilla’s pro se status before the        even though cause had not been established. See McCleskey
No. 03-3153                         Bonilla v. Hurley    7

v. Zant, 499 U.S. 467, 494-95 (1991); Murray, 477 U.S. at
496. Thus, as a result of his unexcused procedural default,
the grounds for relief presented in Bonilla’s habeas corpus
petition may not be considered on federal habeas corpus
review.
  Accordingly, we affirm the judgment of the magistrate
judge.
