State v. LittlejohnState v. Littlejohn
JUDGMENT: APPLICATION DENIED
Mario A. Littlejohn, pro se
Inmate No. A584806
Mansfield Correctional Inst.
P. O. Box 788
Mansfield, OH 44901
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Erica Barnhill
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
{¶1} Mario A. Littlejohn has filed a timely application for reopening pursuant to
{¶2} In order to establish a claim of ineffective assistance of appellate counsel, Littlejohn must demonstrate that appellate counsel‘s performance was deficient and that, but for the deficient performance, the result of his appeal would have been different. State v. Reed, 74 Ohio St.3d 534, 660 N.E.2d 456 (1996). Specifically, Littlejohn must establish that “there is a genuine issue as to whether he was deprived of the assistance of counsel on appeal.”
In State v. Reed [supra, at 458] we 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, 25, 701 N.E.2d 696 (1998).
{¶4} In Strickland, the United States Supreme Court also stated that a court‘s scrutiny of an attorney‘s work must be deferential. The court further stated that it is too 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, especially when examining the matter in hindsight. 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. at 689. Finally, the United States Supreme Court has established that an appellate attorney possesses the discretion to decide which issues he or she believes are the most fruitful arguments based upon the importance of winnowing out weaker arguments on appeal and focusing on one central issue or at most a few key issues. Jones v. Barnes, supra.
{¶5} In the case sub judice, Littlejohn raises four proposed assignments of error in support of his claim of ineffective assistance of appellate counsel:
“The appellant was denied a fair trial and [d]ue process of [l]aw when he did not receive [e]xculpatory [e]vidence.“; - “The appellant received ineffective assistance of trial counsel for failing to properly raise the issue of prosecutorial misconduct to support his motion for mistrial.“;
- “The trial court abused its discretion when it denied the appellant[‘]s motion for mistrial due to not receiving [e]xculpatory [e]vidence.“; and
- “The appellant[‘]s conviction for [t]rafficking [in] drugs pursuant to
Revised Code § 2925.03 with a juvenile spec. is insufficient because it is absent proof beyond a reasonable doubt which deprived the appellant his constitutional right to due process of law. Jackson v. Virginia (1979), 443 U.S. 307; Fifth and Fourteenth Amendments to the United States Constitution, and Section 10, Article I of the Ohio Constitution.”
{¶6} Littlejohn, however, has failed to present any substantive argument, with regard to his four proposed assignments of error, that demonstrates how appellate counsel‘s performance was deficient and that he was prejudiced by appellate counsel‘s claimed deficiency.
{¶10} Through his second proposed assignment of error, Littlejohn agues that trial counsel was ineffective by failing to zealously argue with regard to a motion for a mistrial as based upon prosecutorial misconduct and the aforesaid discovery issue. As stated previously, there exists no evidence of prosecutorial misconduct in the record. In addition, we find that trial counsel was not ineffective through his argument of a motion for mistrial. State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999).
{¶12} Through his fourth proposed assignment of error, Littlejohn argues that his conviction for the offense of trafficking in drugs was not supported by sufficient evidence.
{¶13} In State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, the Ohio Supreme Court explained the standard for sufficiency of the evidence:
Raising the question of whether the evidence is legally sufficient to support the jury verdict as a matter of law invokes a due process concern. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. In reviewing such a challenge, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
{¶15} Thus, we find that Littlejohn has failed to establish that appellate counsel was ineffective on appeal through his four proposed assignments of error.
Accordingly, the application for reopening is denied.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and JAMES J. SWEENEY, J., CONCUR