Mark Gerth v. Warden, 938 F.3d 821

Mark Gerth stole an SUV, led police on a high-speed chase, and crashed into a taxicab, killing two occupants; he was convicted on 12 counts and sentenced to a lengthy term.
Before trial Gerth repeatedly sought to discharge counsel and to proceed pro se; the trial court denied the Faretta request citing untimeliness, disruptive behavior, and concerns about his competence to waive counsel.
Gerth was convicted; his direct appeal was affirmed. He then filed a Rule 26(B) application to reopen his appeal claiming appellate counsel was ineffective for, among other things, failing to raise the Faretta claim.
The Ohio Court of Appeals granted the first 26(B) application, appointed new counsel, and reopened the appeal but did not direct counsel to raise the Faretta claim; on the reopened appeal Gerth’s counsel did not assert Faretta.
Gerth filed a successive 26(B) alleging his reopened-appellate counsel was ineffective for not raising Faretta; the Ohio Court of Appeals denied the successive application as barred by res judicata; the Ohio Supreme Court declined review.
Gerth sought federal habeas relief arguing appellate counsel ineffective for not raising Faretta; federal courts found the claim procedurally defaulted under Ohio res judicata and denied relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Gerth’s Faretta claim is procedurally defaulted	Gerth contends the Faretta claim was preserved and can be reviewed on habeas	State argues Ohio res judicata bars the claim because it could have been raised on the reopened appeal	Held: Defaulted—res judicata applied and is an adequate, independent state ground
Whether appellate counsel’s failure on the reopened appeal constitutes cause to excuse default	Gerth argues reopened-appellate counsel’s ineffectiveness is cause to excuse the default	State argues reopened appeal is collateral; no constitutional right to counsel there, so counsel error cannot establish cause under Coleman	Held: No—reopened Rule 26(B) appeal is collateral; Gerth had no constitutional right to counsel there, so counsel error cannot establish cause
Whether Martinez or other exceptions excuse the default	Gerth invokes Martinez (and related authority) to argue inadequate counsel at initial-review collateral stage can constitute cause	State relies on Coleman and Davila to limit Martinez and to bar extending it to ineffective-assistance-of-appellate-counsel claims	Held: Martinez does not rescue Gerth; Davila forecloses extending Martinez to appellate-counsel ineffectiveness claims

Faretta v. California, 422 U.S. 806 (recognizes right to self-representation)
Coleman v. Thompson, 501 U.S. 722 (no constitutional right to counsel in postconviction proceedings; ineffective assistance in such proceedings generally cannot excuse procedural default)
Martinez v. Ryan, 566 U.S. 1 (narrow exception: inadequate counsel at initial-review collateral proceedings may establish cause for default of trial-ineffectiveness claims)
Davila v. Davis, 137 S. Ct. 2058 (declines to extend Martinez to claims of ineffective assistance of appellate counsel)
Evitts v. Lucey, 469 U.S. 387 (right to counsel on direct appeal)
Lopez v. Wilson, 426 F.3d 339 (6th Cir. en banc) (Rule 26(B) application is collateral; no constitutional right to counsel at the application stage)
Maupin v. Smith, 785 F.2d 135 (6th Cir.) (four-part test for determining whether a state procedural rule bars federal review)
Webb v. Mitchell, 586 F.3d 383 (applies Maupin factors in procedural-default context)