IN THE SUPREME COURT OF OHIOsupremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=...CHRISTOPHER J....

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, :

: Case No. 2019‐1769

Plaintiff‐Appellee, :

: On Appeal from the

v. : Butler County Court of Appeals,

: Twelfth Appellate District

ROGER SIMPSON, :

: COA Case No. CA2018‐06‐0121

Defendant‐Appellant. :

______________________________________________________________________________

BRIEF OF AMICUS CURIAE OFFICE OF THE OHIO PUBLIC DEFENDER

IN SUPPORT OF APPELLANT ROGER SIMPSON

______________________________________________________________________________

CHRISTOPHER J. PAGAN, #0062751

(Counsel of Record)

1501 First Avenue

Middletown, Ohio 45044

513‐424‐1823

513‐424‐3135—Fax

[email protected]

COUNSEL FOR APPELLANT,

ROGER SIMPSON

PATRICK T. CLARK, #0094087

Supervising Attorney—Legal Department

(Counsel of Record)

CHARLYN BOHLAND, #0088080

Supervising Attorney—Juvenile Department

RACHEL TROUTMAN, #0076741

Supervising Attorney—Death Penalty

Department

250 East Broad Street – Suite 1400

Columbus, Ohio 43215

614‐466‐5394

614‐752‐5167—Fax

[email protected]

[email protected] [email protected]

COUNSEL FOR AMICUS CURIAE,

OFFICE OF THE OHIO PUBLIC DEFENDER

Supreme Court of Ohio Clerk of Court - Filed May 19, 2020 - Case No. 2019-1769

MICHAEL T. GMOSER, #0002132

Butler County Prosecutor

JOHN C. HEINKEL, #0023157

Butler County Assistant Prosecutor

(Counsel of Record)

315 High Street – 11th Floor

Hamilton, Ohio 45011

513‐785‐5216

513‐785‐5206—Fax

[email protected]

COUNSEL FOR APPELLEE,

STATE OF OHIO

i

TABLE OF CONTENTS

Page No.

TABLE OF AUTHORITIES ...................................................................................................... iii

INTRODUCTION ........................................................................................................................1

STATEMENT OF INTEREST OF AMICUS CURIAE,

OFFICE OF THE OHIO PUBLIC DEFENDER .......................................................................3

STATEMENT OF THE CASE AND FACTS ...........................................................................3

LAW AND ARGUMENT ...........................................................................................................4

ACCEPTED PROPOSITION OF LAW ....................................................................................4

Appellate ineffectiveness is measured in the application and reopening

by comparing the presented arguments on direct appeal with omitted

ones, by applying the Sixth Circuit’s Mapes factors to weigh the

strengths, weaknesses, and viability of those omitted arguments, and by

evaluating postconviction facts about appellate counsel’s preparedness

and tactics. .........................................................................................................................4

I. Stringently applying the Mapes factors at the App.R. 26(B)(5) reopening stage places too high a burden on appellants seeking to

reopen a direct appeal. ..............................................................................................4

A. Presenting a colorable claim of ineffectiveness is not the same thing

as proving ineffectiveness. ...................................................................................5

B. The page and time limitations on applicants at App.R. 26(B)(5)

allow development of a colorable claim but make proof of that

claim nearly impossible. .......................................................................................7

C. Case studies illustrate the danger of an overly rigorous burden at the first step of the reopening process. ..............................................................8

1. Mapes/Franklin ..................................................................................................8

ii

TABLE OF CONTENTS (Cont’d)

Page No.

2. Schleiger ...........................................................................................................10

3. Weisenborn ......................................................................................................13

II. The structure of App.R. 26(B) allows a more rigorous assessment of appellate counsel’s effectiveness after reopening. ............................................14

A. App.R. 26(B)(7)‐(8) permit in depth briefing and record

development. .......................................................................................................14

B. Applicants must prove Strickland’s two elements. .........................................15

C. The Mapes factors provide a useful heuristic for assessing both competence and prejudice, provided that they are not mechanically

evaluated. .............................................................................................................15

CONCLUSION ...........................................................................................................................17

CERTIFICATE OF SERVICE ...................................................................................................18

iii

TABLE OF AUTHORITIES

Page No.

CASES:

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ....................10

Axson‐Flynn v. Johnson, 356 F.3d 1277 (10th Cir.2004)..............................................5, 6

Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) .............................12

Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L.Ed.2d 821 (1985) .............................1

Franklin v. Anderson, 434 F.3d 412 (6th Cir.2006) ......................................................8, 9

Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) .................12

Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) ..........................16

Mapes v. Coyle, 171 F.3d 408 (6th Cir.1999) ....................................................................8

Mapes v. Tate, 388 F.3d 187 (6th Cir.2004) ............................................................ passim

Morgan v. Eads, 104 Ohio St.3d 142, 2004‐Ohio‐6110, 818 N.E.2d 1157 .................2, 7

Mayo v. Henderson, 13 F.3d 528 (2d Cir.1994) ..........................................................6, 16

Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) ......................10, 11

Petition of Brown, 49 Ohio St. 3d 222, 551 N.E.2d 954 (1990) .......................................1

Schleiger v. Sheldon, S.D.Ohio No. 3:15‐CV‐249, 2017 WL 3085690 .....................11, 12

Schleiger v. Sheldon, S.D.Ohio No. 3:15‐CV‐249, 2017 WL 3838662 ...........................11

Small v. Commr. of Correction, 286 Conn. 707, 946 A.2d 1203 (2008) .........................15

Smith v. Murray, 477 U.S. 527, 105 S.Ct. 2661, 91 L.Ed.2d 434 (1986) .......................16

iv

TABLE OF AUTHORITIES (Cont’d)

Page No.

State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982) ...................................................7

State v. Comer, 99 Ohio St.3d 463, 2003‐Ohio‐4165, 793 N.E.2d 473 ...........................6

State v. Davis, 119 Ohio St.3d 422, 2008‐Ohio‐4608, 894 N.E.2d 1221 ........................2

State v. Hunt, 8th Dist. Cuyahoga No. 93080, 2010‐Ohio‐5839 ...................................4

State v. Keith, 79 Ohio St.3d 514, 684 N.E.2d 47 (1997) .................................................2

State v. Moore, 149 Ohio St.3d 557, 2016‐Ohio‐8288, 76 N.E.3d 1127 .......................12

State v. Patterson, 123 Ohio App.3d 237, 704 N.E.2d 14 (7th Dist.1997) .....................4

State v. Poindexter, 36 Ohio St.3d 1, 520 N.E.2d 581 (1988) ..........................................6

State v. Sanders, 75 Ohio St.3d 607, 665 N.E.2d 199 (1996) ...........................................4

State v. Schleiger, 12th Dist. Preble No. CA2009‐09‐026, 2018‐Ohio‐2359 ................13

State v. Schleiger, 141 Ohio St.3d 67, 2014‐Ohio‐3970, 21 N.E.3d 1033 .....................10

State v. Schleiger, Preble App. No. CA2009‐09‐026 (Decision, Aug. 30, 2010) .........10

State v. Schleiger, Preble App. No. CA2009‐09‐026 (Entry Denying

Application to Reopen, Feb. 3, 2011). ....................................................................11

State v. Smith, 95 Ohio St.3d 127, 2002‐Ohio‐1753, 766 N.E.2d 588 ..........................15

State v. Spivey, 84 Ohio St.3d 24, 701 N.E.2d 696 (1998) ...............................................4

State v. Wiesenborn, 2019‐Ohio‐4487, 135 N.E.3d 812 (2d Dist.) ................................13

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984) .....................................................................................................................12, 15

v

TABLE OF AUTHORITIES (Cont’d)

Page No.

Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ..................12

STATUTE:

R.C. 2953.21 ........................................................................................................................7

RULE:

App.R. 26 .................................................................................................................. passim

OTHER AUTHORITY:

Claim, Colorable Claim, Black’s Law Dictionary 282 (9th Ed.2009) ..............................5

1

INTRODUCTION

“A first appeal as of right … is not adjudicated in accord with due process of law

if the appellant does not have the effective assistance of an attorney.” Evitts v. Lucey, 469

U.S. 387, 396, 105 S. Ct. 830, 836, 83 L.Ed.2d 821 (1985). As this Court has recognized, the

right to the effective assistance of appellate counsel is “based on constitutional

guarantees.” Petition of Brown, 49 Ohio St. 3d 222, 223, 551 N.E.2d 954, 955 (1990). But

currently, these claims are not being considered in a manner that fits those

constitutional guarantees.

Claims of appellate counsel’s ineffectiveness deserve meaningful consideration

without federal intervention, but App.R. 26(B)’s two‐tiered procedure to guarantee this

is not being faithfully followed by the courts. Instead, appellate courts are rejecting

ineffective assistance of appellate counsel claims by imposing too rigorous a standard at

the first stage of the App.R. 26(B) process. Consequently, meritorious claims of

ineffective assistance of appellate counsel may still be left undiscovered due to a process

that is inadequate for the applicant to prove those errors exist. Even if Mapes v. Tate, 388

F.3d 187 (6th Cir.2004) (Mapes II) may be a useful guide for the analysis appellate

ineffectiveness claims, it is irrelevant when so few applicants ever get the opportunity

to meet its test.

This Court can remedy that problem. Once applicants make a colorable claim of

ineffectiveness, this Court should hold that they are entitled to move to App.R. 26(B)’s

2

second stage. At this second stage, this Court’s holding in Morgan v. Eads, 104 Ohio

St.3d 142, 2004‐Ohio‐6110, 818 N.E.2d 1157, ¶ 10, that proceedings under 26(B) “are

collateral postconviction proceedings,” that “require[] that an applicant submit

additional matter not in the record” must clearly apply. Here, this Court should remind

courts that, in order to determine whether an applicant has demonstrated prejudice

from his counsel’s deficient performance, the applicant needs the opportunity to

present proof outside the record. See State v. Keith, 79 Ohio St.3d 514, 536, 684 N.E.2d 47

(1997). Only then may the App.R. 26(B) court “function as a trier of fact” as intended by

the rule. State v. Davis, 119 Ohio St.3d 422, 2008‐Ohio‐4608, 894 N.E.2d 1221, ¶ 21.

There, with the opportunity for record development and more exhaustive

briefing, courts may use the Mapes factors as a guide to determine the overarching

question: whether appellate counsel provided ineffective assistance of counsel, and

whether appellant is entitled to relief.

3

STATEMENT OF INTEREST OF AMICUS CURIAE


The Office of the Ohio Public Defender (OPD) is a state agency, designed to

represent criminal defendants and to coordinate criminal defense efforts throughout

Ohio. The OPD also plays a key role in the promulgation of Ohio statutory law and

procedural rules. The primary focus of OPD’s litigation efforts is on the appellate phase

of criminal cases, including direct appeals and collateral attacks on convictions. In

addition, the OPD seeks to promote the proper administration of criminal justice by

enhancing the quality of criminal defense representation, educating legal practitioners

and the public on important defense issues, and supporting study and research in the

criminal justice system.

As amicus curiae, the OPD offers this Court the perspective of practitioners who

routinely handle applications to reopen appeals across a varied range of appeals

including juvenile adjudications, juvenile bindover convictions, general felony cases,

and death penalty cases. Accordingly, the OPD has an enduring interest in protecting

the integrity and manageability of Ohio’s procedure for ensuring constitutionally‐

effective representation during a direct appeal of a conviction or adjudication.

STATEMENT OF THE CASE AND FACTS

Amicus curiae adopts the statement of the case and the facts set forth in Mr.

Simpson’s merit brief.

4

LAW AND ARGUMENT

ACCEPTED PROPOSITION OF LAW

Appellate ineffectiveness is measured in the application

and reopening by comparing the presented arguments on

direct appeal with omitted ones, by applying the Sixth

Circuit’s Mapes factors to weigh the strengths, weaknesses,

and viability of those omitted arguments, and by

evaluating postconviction facts about appellate counsel’s

preparedness and tactics.

I. Stringently applying the Mapes factors at the App.R. 26(B)(5) reopening stage

places too high a burden on appellants seeking to reopen a direct appeal.

To meet App.R. 26(B)(5)’s genuine issue requirement, an appellant must

“establish the existence of a colorable claim of ineffective assistance of appellate

counsel.” State v. Sanders, 75 Ohio St.3d 607, 665 N.E.2d 199 (1996); see also State v.

Spivey, 84 Ohio St.3d 24, 701 N.E.2d 696 (1998). Lower courts have repeated this

“colorable claim” language. See State v. Hunt, 8th Dist. Cuyahoga No. 93080, 2010‐Ohio‐

5839, ¶ 7; State v. Patterson, 123 Ohio App.3d 237, 244, 704 N.E.2d 14 (7th Dist.1997). But

the rigorous analysis of the claim at the reopening stage in cases like Hunt and Patterson

show that lower courts sometimes evaluate the actual merits at this stage, creating an

artificially high hurdle to clear before reopening a direct appeal. Hunt at ¶ 10‐20;

Patterson at 244‐248.

5

A. Presenting a colorable claim of ineffectiveness is not the same

thing as proving ineffectiveness.

There is a clear difference between a “colorable claim” and a “successful claim.”

A colorable claim is one “that is legitimate and that may reasonably be asserted, given

the facts presented and the current law (or a reasonable and logical extension or

modification of the current law).” Claim, Colorable Claim, Black’s Law Dictionary 282

(9th Ed.2009). But this standard has been operationalized in different ways, as required

by the context in which “colorable claim” is used. The Tenth Circuit Court of Appeals

defined colorable claim in the context of a hybrid‐rights First Amendment claim as

requiring “a fair probability or likelihood, but not a certitude, of success on the merits.”

Axson‐Flynn v. Johnson, 356 F.3d 1277, 1297 (10th Cir.2004). Its rationale is instructive

here:

Our approach strikes a middle ground between the two extremes of

painting hybrid‐rights claims too generously and construing them too

narrowly. Axson–Flynn urges us to adopt the more generous definition of

“colorable” that was utilized by the district court, which only required the

companion claim to be “non‐frivolous.”

***

The adoption of a “non‐frivolous” standard would open the floodgates for

hybrid‐rights claims, as nearly every plaintiff with a free exercise claim

would be able to assert an additional non‐frivolous constitutional claim.

We decline to allow such a result, given the fact that the hybrid‐rights

theory has been roundly criticized from every quarter and many have

pointed out the danger of interpreting such hybrid‐rights claims broadly.

***

6

On the other hand, it makes no sense to adopt a strict standard that

essentially requires a successful companion claim because such a test

would make the free exercise claim unnecessary. If the plaintiffʹs

additional constitutional claim is successful, he or she would typically not

need the free exercise claim and the hybrid‐rights exception would add

nothing to the case.

Id. at 1295‐1297.

Similarly, here, reading the “genuine issue” showing to require success on the

merits renders App.R. 26(B)(5) superfluous to App.R. 26(B)(7)’s requirement that an

appellant demonstrate the ineffectiveness of direct appeal counsel. But requiring a “fair

probability or likelihood, but not a certitude, of success on the merits” protects

appellate courts from a world in which every direct appeal is reopened for a second

round of briefing. Such a test would allow for preservation of habeas issues without

requiring the reopening of an appeal. See State v. Poindexter, 36 Ohio St.3d 1, 520 N.E.2d

581 (1988), syllabus (allowing for summary disposition of issues that are preserved for

federal habeas). But it would require a closer look at omitted colorable claims, even

ones that might have been rejected by an intermediate appellate court. See Mayo v.

Henderson, 13 F.3d 528, 533‐534 (2d Cir.1994) (holding that an “attorney’s omission of a

meritorious claim cannot be excused simply because an intermediate appellate court

would have rejected it.”); see also State v. Comer, 99 Ohio St.3d 463, 2003‐Ohio‐4165, 793

N.E.2d 473 (ruling in favor of a defendant on an issue that was raised for the first time

in an App.R. 26(B) application).

7

B. The page and time limitations on applicants at App.R. 26(B)(5)

allow development of a colorable claim but make proof of that claim

nearly impossible.

The procedural limitations at App.R. 26(B)(5)’s reopening stage make it nearly

impossible to prove anything beyond a fair probability of success on the merits.

In part because it allows for greater fact development akin to a postconviction

petition, an App.R. 26(B) application is a collateral challenge to a direct appeal. Eads,

2004‐Ohio‐6110, at ¶ 7, 12. And postconviction attacks on the effectiveness of trial

counsel often require significant evidence de hors the trial record. State v. Cole, 2 Ohio

St.3d 112, 114, 443 N.E.2d 169 (1982). But the page and time limits in App.R. 26(B) are

even more stringent than the postconviction process outlined in R.C. 2953.21.

Absent a showing of good cause, an application to reopen “based on a claim of

ineffective assistance of appellate counsel” must be filed “within ninety days from the

journalization of the appellate judgment.” App.R. 26(B)(1). The application must make a

colorable claim of ineffectiveness and contain “[o]ne or more assignments of error or

arguments in support of assignments of error that were previously not considered on the

merits * * * or that were considered on an incomplete record because of appellate

counsel’s deficient representation.” App.R. 26(B)(2)(c). All of this must be done in ten

pages or less. App.R. 26(B)(4).

The time limits imposed by App.R. 26(B)(1) permit only a small window for

fact development. During this time, 26(B) counsel must correspond with his or

her client, review the appellate record, identify missed issues, and—in the

event that they are cooperative—consult with direct appeal counsel. Many of

8

the more fact‐intensive Mapes factors cannot be fully assessed in this window

of time (though they may be further developed in a later evidentiary hearing

held under App.R. 26(B)(8)).

The page limits imposed by App.R. 26(B)(4) provide the space to sketch out

colorable claims of ineffectiveness, but not to fully develop the omitted

arguments. However, later briefing at App.R. 26(B)(7)—where ineffectiveness

must be proven—does allow for more comprehensive treatment of the ways

that direct appeal counsel failed.

The structure of App.R. 26(B)’s process demonstrates the appropriateness of a lower

burden for proving the existence of a “genuine issue.”

C. Case studies illustrate the danger of an overly rigorous burden at

the first step of the reopening process.

1. Mapes/Franklin

The capital cases of David Mapes and George Franklin are two examples that

demonstrate the type of extra‐record evidence that is often necessary to determine the

merits of ineffectiveness of appellate counsel claims. But, in both cases, appellate

ineffectiveness claims were denied early in the process without the opportunity for

record development.

The Sixth Circuit remanded Mr. Mapes’ case to the district court with the

requirement that it hold a hearing on the issue of whether appellate counsel was

ineffective. Mapes v. Coyle, 171 F.3d 408, 429 (6th Cir.1999) (Mapes I). It provided a list of

factors for the district court to use in its collection of evidence to then evaluate the

performance of appellate counsel. Id. The information elicited at the hearing led the

9

courts to ultimately determine that “Mapesʹs appellate attorneys gained no advantage

from not raising the issue on direct appeal and are unable, even now, to explain why

they did not raise it. No competent attorney, in the circumstances of this case, would

have failed to raise this issue.” Mapes II, 388 F.3d at 192–93.

Similarly, in Franklin v. Anderson, 434 F.3d 412 (6th Cir.2006), it was the facts in

support the of appellate ineffectiveness claim that were important for the Sixth Circuit’s

determination. The Sixth Circuit not only evaluated the strength of the missed issue

itself, but it looked at additional information:

[A]ppellate counsel never met Franklin or even spoke to him over the

telephone. His lead counsel, Roxann Dieffenbach, only corresponded with

him through letters. His other counsel, Candace Greenham, had no

contact with him at all. Between December 4, 1989, and November 26,

1991, Dieffenbachʹs total communication with Franklin consisted of 26

letters, none longer than one page. Her first letter, sent on December 4,

1989, and thus her first contact with Franklin, came eleven months after

she had been appointed to represent him and three weeks before she had

to file his brief with the Court of Appeals. Although she asked him for

input on the brief, she failed to respond to his December 19, 1989, request

for a copy of his transcript until April 22, 1990, and she only sent him a

copy of the Court of Appeals brief one month after it had been submitted

to the court.

Twice Franklin asked Dieffenbach to withdraw from his case. The first

time she responded only by saying the she had argued his case before the

Court of Appeals. The second time she responded only by saying that she

had argued his case before the Ohio Supreme Court.

Id. at 429–30. After examining all of this information, the Sixth Circuit determined that

“[t]here is, thus, no question that Franklinʹs appellate counselsʹ performance was

10

deficient,” and “the failure to raise the biased juror issue on appeal was prejudicial.” Id

at 430.

Both Mr. Mapes and Mr. Franklin had to wait over a decade before obtaining

legal relief from their appellate counsel’s ineffective assistance. That relief ultimately

came from the federal courts. Had the Ohio courts engaged in the type of analysis

conducted by the federal courts, the path to relief and finality would have been

significantly shorter.

2. Schleiger

Curtis Schleiger’s appellate lawyer filed a brief pursuant to Anders v. California,

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Twelfth Appellate District issued

a per curiam decision finding that Mr. Schleiger had a non‐frivolous issue related to

postrelease control. State v. Schleiger, Preble App. No. CA2009‐09‐026 (Decision, Aug. 30,

2010). The court then reversed and remanded Mr. Schleiger’s sentence and remanded

for resentencing to correct the error.2

Mr. Schleiger filed a timely application to reopen the appeal citing Penson v. Ohio,

488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), in which the United States Supreme

Court instructed Ohio appellate courts that when, in their review of an Anders brief,

2 This Court heard an appeal from the postrelease‐control resentencing. State v. Schleiger,

141 Ohio St.3d 67, 2014‐Ohio‐3970, 21 N.E.3d 1033. The decision concerned the right to

trial counsel at such hearings.

11

they find a non‐frivolous issue, they must appoint new counsel to review the record

and file a brief. Penson expressly prohibited courts from reversing without first

appointing counsel:

Most significantly, the Ohio court erred by failing to appoint new

counselto represent petitioner after it had determined that the record

supported “several arguable claims.” App. 41. As Anders unambiguously

provides, “if [the appellate court] finds any of the legal points arguable on

their merits (and therefore not frivolous) it must, prior to decision, afford

the indigent the assistance of counsel to argue the appeal.” 386 U.S., at

744, 87 S.Ct., at 1400; see also [McCoy v. Court of Appeals of Wisconsin, Dist. 1,

486 U.S. 429, 444, 108 S.Ct. 1895, 1905, 100 L.Ed.2d 440 (1988)](“Of course,

if the court concludes that there are nonfrivolous issues to be raised, it

must appoint counsel to pursue the appeal and direct that counsel to

prepare an advocate’s brief before deciding the merits”).

Penson at 83.

Mr. Schleiger filed a timely application to reopen his appeal citing Penson.

Without referring to that controlling decision from the United States Supreme Court,

the Twelfth Appellate District rejected the application as showing no genuine issue of

ineffective assistance of counsel. State v. Schleiger, Preble App. No. CA2009‐09‐026

(Entry Denying Application to Reopen, Feb. 3, 2011).

Despite the Twelfth District’s cursory treatment, Mr. Schleiger’s claim was so

strong that when a federal magistrate judge recommended relief, the Attorney

General’s Office did not file an objection. Schleiger v. Sheldon, S.D.Ohio No. 3:15‐CV‐249,

2017 WL 3838662, adopting Schleiger v. Sheldon, S.D.Ohio No. 3:15‐CV‐249, 2017 WL

3085690. The magistrate judge noted only one difference between Penson and Mr.

12

Schleiger’s case: “Penson arose out of the Second Ohio Appellate District as opposed to

the Twelfth, its neighbor to the west and south.” 2017 WL 3085690 at *4.

The grant of habeas relief shows how careless the Twelfth Appellate District’s

App.R. 26(B) ruling was. As Chief Justice O’Connor correctly explained, “a federal court

hearing a habeas case must judge the merits of a prisonerʹs claim by applying the

‘highly deferential’ standard imposed by AEDPA.” State v. Moore, 149 Ohio St.3d 557,

2016‐Ohio‐8288, 76 N.E.3d 1127, ¶ 116 (O’Conner, C.J, concurring), quoting Harrington

v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), quoting Strickland v.

Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Further, that

“standard forbids a federal court from granting habeas relief in a collateral attack on a

state courtʹs judgment unless that decision was ‘contrary to’ clearly established federal

law, 28 U.S.C. 2254(d)(1), i.e., one in which ‘the state court applie[d] a rule different

from the governing law set forth [by the Supreme Court] or * * * decide[d] a case

differently than [the Supreme Court] has done on a set of materially indistinguishable

facts.’” Moore at ¶ 116, quoting Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d

914 (2002), citing Williams v. Taylor, 529 U.S. 362, 405–406, 120 S.Ct. 1495, 146 L.Ed.2d

389 (2000).

So Mr. Schleiger eventually got his appeal. But because of the delays following

the Twelfth District’s cursory and clearly incorrect rejection of his application to reopen,

by the time the court of appeals issued its decision, he had served more than nine years

13

of a nine‐and‐a‐half‐year prison term. State v. Schleiger, 12th Dist. Preble No. CA2009‐09‐

026, 2018‐Ohio‐2359.

3. Weisenborn

In State v. Wiesenborn, a 19‐year‐old was sentenced to die in prison for sex

offenses that occurred before and after he turned 18. State v. Wiesenborn, 2019‐Ohio‐

4487, 135 N.E.3d 812 (2d Dist.), ¶ 12. On direct appeal, the juvenile court hearings were

not transcribed, the juvenile court record was not transmitted for appellate review, and

no issues were raised regarding the transfer of jurisdiction from the juvenile to the

criminal court. Application to Reopen, State v. Wiesenborn, Case No. 28224 (2d Dist. Jan.

30, 2020). Instead, direct appeal counsel focused on the propriety of the imposed

sentence.

After the case was affirmed, App.R. 26(B) counsel reviewed the juvenile court

docket and entries and determined that there was a finding by the juvenile court judge

that the appellant was below the age of eligibility for transfer. Id. at 2. If Zaren

Wiesenborn was ineligible for transfer on those offenses, it would result in a sentence

reduction of nearly 40 years.

Because the information was never transmitted to the appellate record, in order

to demonstrate a genuine issue to reopen the appeal, App.R. 26(B) counsel had to not

only review the records transmitted for appeal, but also collect the juvenile court

records from the clerk’s office to review, and contact the juvenile court reporter to

14

arrange for paying for the creation of the transcripts and review those once completed.

Id. at 3.

The case is still pending review, but it demonstrates the practical hardships that

26(B) counsel encounters. Adding additional considerations or outside of the record

requirements at the App.R. 26(B)(5) stage—as opposed to later in the App.R.26(B)

process—only increases the hardships and draws the court’s attention away from the

colorable claim analysis.

II. The structure of App.R. 26(B) allows a more rigorous assessment of

appellate counsel’s effectiveness after reopening.

In contrast to the truncated reopening procedure at App.R. 26(B)(5), the

remainder of the rule allows for more in‐depth treatment of the legal issues omitted in

the direct appeal, a sustained analysis of appellate counsel’s ineffectiveness, and record

development to address factual predicates to a finding of ineffective assistance of

appellate counsel. Provided with this additional information, a court reviewing an

App.R. 26(B) application is better positioned to rule on appellate ineffectiveness claims

than it was upon receipt of a 10‐page application supported only by affidavit.

A. App.R. 26(B)(7)‐(8) permit in depth briefing and record

development.

The procedure envisioned by App.R. 26(B) gives applicants a considerably

broader set of tools for use when the burden to prevail becomes harder to meet. The

reviewing court may only vacate its prior judgment if it “finds that the performance of

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appellate counsel was deficient and the applicant was prejudiced by that deficiency.”

App.R. 26(B)(9). But, prior to that finding, the reviewing court may expand the record

through holding an evidentiary hearing before either itself or a magistrate. App.R.

26(B)(8). And it has the benefit of additional briefing that both raises the previously

omitted assignments of error and addresses “the claim that representation by prior

appellate counsel was deficient.” App.R. 26(B)(7). This briefing is not limited by court

rule to 10 pages and has page limits that may be enlarged upon motion.

B. Applicants must prove Strickland’s two elements.

Ohio Rule of Appellate Procedure 26(B)(9) does not require successful applicants

to make specific showings that address a multi‐factor test. Instead, the rule requires

applicants to satisfy Strickland’s familiar test: a showing that, but for counsel’s

unreasonable performance, there was a reasonable probability of a different outcome.

App.R. 26(B)(9); State v. Smith, 95 Ohio St.3d 127, 2002‐Ohio‐1753, 766 N.E.2d 588, ¶ 6.

This test—for ineffective assistance of appellate counsel—is consistent across

jurisdictions. See Small v. Commr. of Correction, 286 Conn. 707, 721, 946 A.2d 1203, 1213

(2008) (collecting cases).

C. The Mapes factors provide a useful heuristic for assessing

both competence and prejudice, provided that they are not

mechanically evaluated.

Rather than creating a new standard by which to judge appellate counsel’s

effectiveness, the Sixth Circuit’s Mapes factors provide a heuristic that can aid courts in

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determining when counsel’s performance is objectively deficient. Of course, the fact that

appellate counsel omitted an issue does not establish deficient performance—

“’winnowing out weaker arguments on appeal and focusing on’ those more likely to

prevail, far from being evidence of incompetence, is the hallmark of effective appellate

advocacy.” Smith v. Murray, 477 U.S. 527, 536, 105 S.Ct. 2661, 91 L.Ed.2d 434 (1986),

quoting Jones v. Barnes, 463 U.S. 745, 751‐752, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). So

distinguishing strategic winnowing from negligent omission is an essential duty of

courts that consider claims of appellate ineffectiveness.

The Mapes factors aid in this process, but are notably “not exhaustive” or

intended “to produce a correct score.” Mapes, 388 F.3d at 191. There are cases in which

experienced and well‐regarded appellate counsel will fail to raise significant and strong

issues. Id. There are also cases in which appellate counsel will hesitantly and

begrudgingly cooperate with App.R. 26(B) counsel, if at all. Id. Other issues may be

significantly stronger than the ones raised, even if there is “contrary authority on the

omitted issues.” Id., see also Mayo, 13 F.3d at 533‐534. Even when more Mapes factors

weigh individually in the State’s favor, courts that review claims of appellate

ineffectiveness must resolve the ultimate merits question by determining whether the

omission of an issue was objectively unreasonable.

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CONCLUSION

Reviewing courts deny too many App.R. 26(B) applications early in the process,

leaving undeveloped colorable claims of appellate ineffectiveness. If this Court does

adopt the Mapes factors, it should do so while also explicitly instructing lower courts

about how to determine whether a claim of appellate ineffectiveness is “colorable.”

Respectfully submitted,

/s/ Patrick T. Clark



/s/ Charlyn Bohland

CHARLYN BOHLAND, #0088080

Supervising Attorney—Juvenile Department

/s/ Rachel Troutman

RACHEL TROUTMAN, #0076741

Supervising Attorney—Death Penalty

Department

250 East Broad Street – Suite 1400

Columbus, Ohio 43215

614‐466‐5394

614‐752‐5167—Fax

[email protected]

[email protected] [email protected]



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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing BRIEF OF AMICUS CURIAE OFFICE

OF THE OHIO PUBLIC DEFENDER IN SUPPORT OF APPELLANT ROGER

SIMPSON was electronically served to the following parties on this 19th day of May,

2020:

Christopher J. Pagan, Attorney‐at‐Law

[email protected]

John C. Heinkel, Butler County Assistant Prosecutor

[email protected]

/s/ Patrick T. Clark





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