[This decision has been published in Ohio Official Reports at
92 Ohio St.3d 241.]
THE STATE OF OHIO, APPELLEE, v. PALMER, APPELLANT.
[Cite as State v. Palmer, 2001-Ohio-188.]
Appellate procedure—Application for reopening appeal of judgment of conviction
based on claim of ineffective assistance of appellate counsel—Court of
appeals’ dismissal of application to reopen appeal affirmed when no
genuine issue exists as to whether applicant was denied the effective
assistance of counsel.
(No. 00-2201—Submitted April 24, 2001—Decided July 11, 2001.)
APPEAL from the Court of Appeals for Belmont County, No. 89-B-28.
__________________
Per Curiam.
{¶ 1} Appellant, Donald L. Palmer, Jr., was convicted of the aggravated
murders of Charles Sponhaltz and Steven Vargo and sentenced to death. He was
also convicted and sentenced to prison for the aggravated robberies of Sponhaltz
and Vargo. The court of appeals affirmed his convictions and sentence. State v.
Palmer (Aug. 29, 1996), Belmont App. No. 89-B-28, unreported, 1996 WL
495576. On direct appeal as of right, we also affirmed. State v. Palmer (1997),
80
Ohio St.3d 543,
687 N.E.2d 685, certiorari denied, Palmer v. Ohio (1998),
525 U.S.
837,
119 S.Ct. 96,
142 L.Ed.2d 76.
{¶ 2} In addition, the trial court denied Palmer’s petition for postconviction
relief, and the court of appeals affirmed. State v. Palmer (Oct. 20, 1999), Belmont
App. No. 96BA70, unreported, 1999 WL 979228. We declined to accept Palmer’s
appeal. State v. Palmer (2000),
88 Ohio St.3d 1424,
723 N.E.2d 1113.
{¶ 3} On May 8, 2000, Palmer filed a “Notice of Intention to file a federal
habeas corpus action” in the United States District Court for the Southern District
of Ohio. On May 18, 2000, the United States District Court appointed counsel to
SUPREME COURT OF OHIO
represent Palmer in connection with the federal habeas proceedings, and on May
31, 2000, that court stayed Palmer’s scheduled execution.
{¶ 4} On August 28, 2000, Palmer filed an application with the Belmont
County Court of Appeals to reopen his appeal from his conviction 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 appellate counsel before that court. However, the
court of appeals found that Palmer had failed to show good cause for filing his
application more than ninety days after that court’s judgment was journalized, as
required by App.R. 26(B)(2)(b). State v. Palmer (Oct. 25, 2000), Belmont App.
No. 89B28, unreported. Hence, that court dismissed Palmer’s application to reopen
his appeal. The cause is now before this court upon an appeal as of right.
{¶ 5} We find that no genuine issue exists as to whether Palmer was denied
the effective assistance of counsel in his initial 1996 appeal. We therefore affirm
the judgment of the court of appeals.
{¶ 6} In arguing his first proposition of law, Palmer asserts that “he has a
federal constitutional right … to have counsel appointed to assist him in raising
a claim that his [former] appellate counsel rendered ineffective assistance of
counsel in the direct appeal to the … Court of Appeals.” Essentially, Palmer
argues that he has a constitutional right to two sets of appellate lawyers: one to
argue his case on appeal, and a second to argue that the first was incompetent.
{¶ 7} We overrule this proposition of law. Palmer failed to present this
issue to the court of appeals in his application to reopen his appeal and thereby
waived the issue. State v. Williams (1977), 51 Ohio St.2d 112,
5 O.O.3d 98,
364
N.E.2d 1364, paragraph two of the syllabus. Moreover, the issue is moot. Two
attorneys assisted Palmer in preparing his Murnahan application and currently
represent Palmer in the instant Murnahan appeal. Nor has Palmer claimed that if
an attorney had been appointed to assist him in preparing his application that such
an attorney would have raised issues different from those his current counsel have
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January Term, 2001
raised. As we noted in Tschantz v. Ferguson (1991), 57 Ohio St.3d 131, 133,
566
N.E.2d 655, 657, “No actual controversy exists where a case has been rendered
moot by an outside event.” Here, the appearance of attorneys at the court of appeals
on Palmer’s behalf has mooted the issue.
{¶ 8} In his third proposition, Palmer asserts that his counsel have
established a genuine issue as to whether he was denied the effective assistance of
counsel in his initial appeal to the court of appeals. The two-pronged 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 whether Palmer has raised a “genuine issue”
as to the ineffectiveness of appellate counsel in his request to reopen under App.R.
26(B)(5). State v. Spivey (1998),
84 Ohio St.3d 24, 25,
701 N.E.2d 696, 697; State
v. Reed (1996),
74 Ohio St.3d 534, 535,
660 N.E.2d 456, 458. “To show ineffective
assistance, [Palmer] must prove that his counsel were deficient for failing to raise
the issues he now presents and that there was a reasonable probability of success
had he presented those claims on appeal.” State v. Sheppard (2001),
91 Ohio St.3d
329, 330,
744 N.E.2d 770, 771, citing State v. Bradley (1989),
42 Ohio St.3d 136,
538 N.E.2d 373, paragraph three of the syllabus. Moreover, to justify reopening
his appeal, Palmer “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 at 697.
{¶ 9} We have reviewed Palmer’s assertions of deficient performance by
appellate counsel and find that Palmer has failed to raise “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 App.R. 26(B)(5).
{¶ 10} In his second proposition of law, Palmer argues that he had good
cause for the late filing of his application for reconsideration under App.R. 26(B)
and relies, in part, upon White v. Schotten (C.A.6, 2000), 201 F.3d 743, to support
his claim of good cause. However, our disposition of Palmer’s third proposition,
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SUPREME COURT OF OHIO
on the merits, negates any need to decide that issue. 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.
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Frank Pierce, Belmont County Prosecuting Attorney, and Robert W. Quirk,
Assistant Prosecuting Attorney, for appellee.
Keith A. Yeazel and Michael J. O’Hara, for appellant.
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