State v. SmithState v. Smith
Appellate procedure—Application to reopen appeal from judgment of conviction based on claim of ineffective assistance of appellate counsel—Application denied when applicant fails to raise a genuine issue as to whether he was deprived of the effective assistance of counsel on appeal as required by
APPEAL from the Court of Appeals for Lorain County, No. 96CA006331.
Per Curiam.
{¶1} Appellant, Raymond A. Smith, challenges the denial of his application to reopen his direct appeal under
{¶2} Smith was convicted of the aggravated murder of Ronald Lally and sentenced to death. Upon appeal, the court of appeals affirmed the conviction and death sentence. State v. Smith (Mar. 25, 1998), Lorain App. No. 96CA006331, 1998 WL 158966. We also affirmed his conviction and sentence on January 5, 2000. State v. Smith (2000), 87 Ohio St.3d 424, 721 N.E.2d 93.
{¶3} Soon afterwards, the court of appeals affirmed the trial court‘s decision to deny Smith‘s petition for postconviction relief. State v. Smith (Mar. 15, 2000), Lorain App. No. 98CA007169, 2000 WL 277912. We refused to accept Smith‘s appeal of that decision. State v. Smith (2000), 89 Ohio St.3d 1453, 731 N.E.2d 1140.
{¶4} On July 17, 2001, appellant filed a pro se application for reopening with the court of appeals pursuant to
{¶5} In denying appellant‘s application for reopening, the court of appeals essentially found that Smith had failed to show good cause for filing his application more than ninety days after that court‘s judgment was journalized, as required by
{¶7} Moreover, to justify reopening his appeal, Smith “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 at 25, 701 N.E.2d 696.
{¶8} Strickland charges us to “appl[y] a heavy measure of deference to counsel‘s judgments,” 466 U.S. at 691, 104 S.Ct. 2052, 80 L.Ed.2d 674; and to “indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance,” id. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. Moreover, we must bear in mind that appellate counsel need not raise every possible issue in order to render constitutionally effective assistance. See Jones v. Barnes (1983), 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987; State v. Sanders (2002), 94 Ohio St.3d 150, 761 N.E.2d 18.
{¶9} We have reviewed appellant‘s four propositions of law alleging, inter alia, deficient performance by appellate counsel. We rejected several of these same arguments on Smith‘s appeal before this court. See State v. Smith, 87 Ohio St.3d 424, 721 N.E.2d 93. In any case, however, in none of the four propositions of law has Smith raised “a genuine issue as to whether [he] was deprived of the effective assistance of counsel on appeal” before the court of appeals, as required under
{¶10} Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
Gregory A. White, Lorain County Prosecuting Attorney, and Jonathan E. Rosenbaum, Assistant Prosecuting Attorney, for appellee.