[This decision has been published in Ohio Official Reports at
93 Ohio St.3d 581.]
THE STATE OF OHIO, APPELLEE, v. CARTER, APPELLANT.
[Cite as State v. Carter, 2001-Ohio-1614.]
Appellate procedure—Second application filed for reopening appeal from
judgment of conviction based on claim of ineffective assistance of
appellate counsel after first application denied—Court of appeals’ denial
of application affirmed—Successive petition barred by doctrine of res
judicata.
(No. 01-977—Submitted September 18, 2001—Decided November 14, 2001.)
APPEAL from the Court of Appeals for Hamilton County, No. C-920604.
__________________
Per Curiam.
{¶ 1} Appellant, Cedric Carter, was convicted of the aggravated murder of
Frances Messinger, and sentenced to death. The court of appeals affirmed his
convictions and sentence. State v. Carter (Nov. 3, 1993), Hamilton App. No. C-
920604, unreported, 1993 WL 512859. We also affirmed Carter’s convictions and
death sentence. State v. Carter (1995),
72 Ohio St.3d 545,
651 N.E.2d 965,
certiorari denied (1995),
516 U.S. 1014,
116 S.Ct. 575,
133 L.Ed.2d 498.
{¶ 2} Subsequently, the court of appeals affirmed the trial court’s decision
to deny Carter’s petition for postconviction relief. State v. Carter (Nov. 14, 1997),
Hamilton App. No. C-960718, unreported, 1997 WL 705487. We refused to accept
Carter’s appeal of that decision. State v. Carter (1998),
81 Ohio St.3d 1467,
690
N.E.2d 1287.
{¶ 3} On June 9, 1999, Carter filed an application with the court of appeals
to reopen his initial appeal pursuant to App.R. 26(B) and State v. Murnahan (1992),
63 Ohio St.3d 60,
584 N.E.2d 1204, alleging ineffective assistance of his appellate
counsel before the court of appeals in his first appeal. However, the court of appeals
SUPREME COURT OF OHIO
denied Carter’s application because he had failed to show good cause for the delay
in applying to reopen his appeal. State v. Carter (Oct. 21, 1999), Hamilton App.
No. C-920604, unreported. Carter did not appeal that decision; hence, that decision
became final.
{¶ 4} On July 19, 2000, Carter requested that the court of appeals appoint
counsel for him to prepare and file an application to reopen his direct appeal
pursuant to App.R. 26(B). The court of appeals denied Carter’s motion. State v.
Carter (Aug. 10, 2000), Hamilton App. No. C-920604, unreported.
{¶ 5} On September 28, 2000, Carter’s present counsel filed a second
application to reopen his initial appeal pursuant to App.R. 26(B) and State v.
Murnahan. The court of appeals denied Carter’s motion to reopen his direct appeal
on the basis that App.R. 26(B) “makes no provision for filing successive
applications to reopen.” State v. Carter (Apr. 9, 2001), Hamilton App. No. C-
920604, unreported. The cause is now before this court upon an appeal as of right.
{¶ 6} Carter raises five issues in this appeal. In his second proposition,
Carter argues that his appellate counsel’s failure to file an appeal to this court,
following the court of appeals’ dismissal of his first application to reopen his direct
appeal pursuant to App.R. 26(B), constitutes ineffective assistance of counsel.
However, Carter had no constitutional right to counsel to pursue an appeal to this
court following the court of appeals’ denial of his application under App.R. 26(B).
State v. Buell (1994), 70 Ohio St.3d 1211,
639 N.E.2d 110. Therefore, Carter could
not be unconstitutionally deprived of the effective assistance of counsel by his
counsel’s failure to file such an appeal. Wainwright v. Torna (1982),
455 U.S. 586,
587-588,
102 S.Ct. 1300, 1301,
71 L.Ed.2d 475, 477-478.
{¶ 7} For the same reason, Carter cannot complain about the court of
appeals’ refusal to appoint new counsel to pursue that appeal as he argues in his
first proposition. “ ‘[T]he right to appointed counsel extends to the first appeal as
of right, and no further.’ (Emphasis added.)” State v. Buell, 70 Ohio St.3d 1211,
2
January Term, 2001
639 N.E.2d 110, quoting Pennsylvania v. Finley (1987),
481 U.S. 551, 555,
107
S.Ct. 1990, 1993,
95 L.Ed.2d 539, 545.
{¶ 8} In his third proposition, Carter argues that he established “good
cause” for his failure to file a timely application pursuant to App.R. 26(B).
However, the court of appeals dismissed Carter’s first application to reopen his
direct appeal, finding no good cause. No appeal was made of that decision. Thus,
Carter’s second application to reopen his direct appeal pursuant to App.R. 26(B) is
foreclosed by the doctrine of res judicata. See State v. Bell (1995), 73 Ohio St.3d
32, 34,
652 N.E.2d 191, 192.
{¶ 9} Carter’s fourth and fifth propositions relate to the merits of issues that
he claims his former appellate lawyers should have raised.1 Carter claims that his
appellate counsel were constitutionally ineffective because they failed to raise
twenty-six specific assignments of error on his direct appeal before the court of
appeals.2 Since we have found his successive petition to be barred by the doctrine
of res judicata, we need not consider those issues.
{¶ 10} Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
__________________
Michael K. Allen, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Jr., Assistant Prosecuting Attorney, for appellee.
Keith A. Yeazel, for appellant.
__________________
1. Carter’s fifteenth assignment of error reiterates his fifth proposition.
2. Carter’s first assignment of error appears to reiterate his second proposition.
3
