[This decision has been published in Ohio Official Reports at
96 Ohio St.3d 344.]
THE STATE OF OHIO, APPELLEE, v. WOODARD, APPELLANT.
[Cite as State v. Woodard, 2002-Ohio-4767.]
Appellate procedure—Application to reopen appeal from judgment of conviction
based on claim of ineffective assistance of appellate counsel—Court of
appeals’ denial of application affirmed, when—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 App.R.
26(B)(5).
(No. 2001-1840—Submitted July 24, 2002—Decided September 25, 2002.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 61171.
__________________
Per Curiam.
{¶1} Appellant, Eugene Woodard, was convicted of the aggravated murder
of Mani Akram and sentenced to death. He was also convicted and sentenced to
prison for aggravated robbery and receiving stolen property. The court of appeals
affirmed his convictions and sentence. State v. Woodard (Apr. 23, 1992),
Cuyahoga App. No. 61171, 1992 WL 84888. On appeal as of right, we also
affirmed. State v. Woodard (1993),
68 Ohio St.3d 70,
623 N.E.2d 75, certiorari
denied, Woodard v. Ohio (1994),
512 U.S. 1246,
114 S.Ct. 2770,
129 L.Ed.2d 883.
{¶2} Subsequently, the trial court denied Woodard’s petition for
postconviction relief, and the court of appeals affirmed. State v. Woodard (Jan. 22,
1998), Cuyahoga App. No. 71912, 1998 WL 23844. We declined to accept
Woodard’s appeal. State v. Woodard (1998),
81 Ohio St.3d 1522,
692 N.E.2d 1024.
The United States Supreme Court also rejected Woodard’s complaint that Ohio’s
clemency process violated his constitutional rights. Ohio Adult Parole Auth. v.
Woodard (1998),
523 U.S. 272,
118 S.Ct. 1244,
140 L.Ed.2d 387.
SUPREME COURT OF OHIO
{¶3} On November 29, 2000, Woodard filed an application in the Cuyahoga
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 Woodard had failed to show good cause for filing his
application more than 90 days after that court’s judgment was journalized, as
required by App.R. 26(B)(2)(b). State v. Woodard (Sept. 18, 2001), Cuyahoga
App. No. 61171,
2001 WL 1134873. The court of appeals also found that
Woodard’s application was barred by res judicata and that Woodard “failed to meet
his burden to demonstrate that ‘there is a genuine issue as to whether the applicant
was deprived of the effective assistance of counsel on appeal,’ ” as required by
App.R. 26(B)(5). Hence, that court also denied the application for reopening the
appeal on the merits. The cause is now before this court upon an appeal as of right.
{¶4} In his second proposition of law, Woodard 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 Woodard 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; State v. Reed (1996),
74 Ohio St.3d 534, 535,
660 N.E.2d 456. “To
show ineffective assistance, [appellant] 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, 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, Woodard “bears the burden of establishing that there
was a ‘genuine issue’ as to whether he has a ‘colorable claim’ of ineffective
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January Term, 2002
assistance of counsel on appeal.” State v. Spivey, 84 Ohio St.3d at 25,
701 N.E.2d
696.
{¶5} We have reviewed Woodard’s assertions of deficient performance by
appellate counsel and find that Woodard 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).
{¶6} In his first proposition of law, Woodard argues that he had good cause
for the late filing of his application to reopen 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 Woodard’s second proposition on the merits of
the case negates any need to decide this 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.
__________________
William D. Mason, Cuyahoga County Prosecuting Attorney, and L.
Christopher Frey, Assistant Prosecuting Attorney, for appellee.
Richard Agopian, for appellant.
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