2022 Ohio 1660
Ohio Ct. App.2022Background
- Houston was convicted of murder after surveillance video showed a man matching his appearance entering the victim’s car, shooting the victim, leaning into the passenger side while touching the top of the car, and shooting again. DNA from the top of the car identified Houston as a major contributor.
- Houston’s direct appeal was affirmed; his subsequent petition for postconviction relief was denied without a hearing.
- Houston filed an App.R. 26(B) application to reopen his appellate judgment, alleging appellate counsel was ineffective for not (1) retaining a DNA expert and (2) arguing the evidence was insufficient.
- App.R. 26(B) requires reopening applications within 90 days of journalization unless good cause is shown; Houston’s underlying appellate decision was journalized November 21, 2019, and his application was filed over two years later.
- Houston invoked COVID-19 restrictions as good cause for delay; the court found the 90-day deadline expired before pandemic restrictions, and that pandemic-related research barriers do not establish good cause here.
- The court denied the application, concluding App.R. 26(B) does not apply to appeals from denials of postconviction relief and the application was untimely with no good cause shown.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Houston) | Held |
|---|---|---|---|
| Applicability of App.R. 26(B) to reopen an appeal from denial of postconviction relief | App.R. 26(B) does not apply to appeals from motions to dismiss or postconviction denials (Loomer/Williams) | App.R. 26(B) can be used to reopen the appeal to address appellate ineffectiveness | Court: App.R. 26(B) does not apply to reopening appeals from postconviction-relief denials; application not a proper vehicle |
| Timeliness / Good cause for late filing | Application is untimely; no good cause shown (90-day rule) | COVID-19 shutdowns prevented research/representation, constituting good cause | Court: Untimely; COVID restrictions do not establish good cause because deadline expired before restrictions and prior cases reject pandemic excuse |
| Merits of ineffective-assistance claims (DNA expert; sufficiency challenge) | Failure to reach merits because procedural defects; also, appellate counsel raised manifest-weight claim and failure to raise sufficiency or additional DNA-expert argument did not establish prejudice | Appellate counsel was ineffective for omitting DNA-expert issue and sufficiency challenge, warranting reopening | Court: Did not reach merits due to procedural grounds; noted that failure to raise both manifest-weight and sufficiency claims is not per se ineffective when manifest-weight was raised |
Key Cases Cited
- State v. Murnahan, 63 Ohio St.3d 60 (Ohio 1992) (framework for App.R. 26(B) ineffective-assistance-of-appellate-counsel reopening)
- State v. Loomer, 76 Ohio St.3d 398 (Ohio 1996) (App.R. 26(B) does not provide basis to reopen appeals from motions to dismiss/postconviction denials)