¶1*860ARGUED: Kort W. Gatterdam, Carpenter, Lipps & Leland, Columbus, Ohio, for Appellant. Diane Mallory, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Kort W. Gatterdam, Carpenter, Lipps & Leland, Columbus, Ohio, for Appellant. Diane Mallory, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.
¶2Before: DAUGHTREY and McKEAGUE, Circuit Judges; VAN TATENHOVE, District Judge.*
¶4OPINION
¶6This is an appeal from the denial of a petition for writ of habeas corpus. The district court issued a certificate of appeal-ability on one issue, noting an apparent lack of uniformity among Sixth Circuit rulings. Finding that the issue certified for appeal has been definitively resolved by Sixth Circuit rulings rendered since the district court denied the habeas petition, we now affirm the denial of habeas relief.
¶7I
¶8Petitioner Drew Parker, Sr., was found guilty by a jury of sixteen counts of gross sexual imposition and four counts of felonious sexual penetration stemming from Parker’s abuse of his step-grandchildren. On June 19, 1998, Parker was sentenced to a prison term of 30-50 years. The Ohio Court of Appeals affirmed and the Ohio Supreme Court denied Parker’s appeal on July 19, 2000.
¶9Meanwhile, on May 25, 1999, Parker had filed a petition for post-conviction relief in the trial court. The trial court denied Parker’s petition on October 28, 1999. Parker’s appeal from this decision was denied by the Ohio Court of Appeals on October 4, 2000 and by the Ohio Supreme Court on February 7, 2001. Parker’s former counsel’s representation ended on February 7, 2001.
¶10Next, Parker filed an application to reopen his appeal under Ohio R.App. P. 26(B) on June 28, 2001, contending his appellate counsel had provided ineffective *861assistance. On August 14, 2001, the Ohio Court of Appeals denied Parker’s application to reopen, finding it to be untimely and without good cause shown. Under Rule 26(B), an application to reopen must be filed in the court of appeals within ninety days after journalization of the appellate judgment unless “good cause” for later filing is shown. Parker’s appeal to the Ohio Supreme Court was denied.
¶11Prior to the Ohio Court of Appeals’ decision, Parker filed a petition for writ of habeas corpus in the Northern District of Ohio on July 10, 2001, asserting, inter alia, the claim for ineffective assistance of appellate counsel. The district court denied Parker’s petition based on procedural default, and issued a certificate of appealability on the sole issue whether the time limitation in Rule 26(B) constitutes an “adequate and independent” state procedural ground foreclosing review of the federal constitutional claim. Parker contends the rule is not adequate and independent because the Ohio courts have not been consistent in their definition and application of the “good cause” requirement.
¶12II
¶13“To be adequate, a state procedural rule must be firmly established and regularly followed.” Fautenberry v. Mitchell, 515 F.3d 614, 640 (6th Cir.2008) (quoting Hutchison v. Bell, 303 F.3d 720, 737 (6th Cir.2002)). To determine whether the state rule is adequate, the court must consider whether the “adequate and independent state procedural bar [was] ‘firmly established and regularly followed’ by the time as of which it [was] to be applied.” Id. at 641 (quoting Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (emphasis added in Fautenberry )). In other words, the court must ask “whether, at the time of the petitioner’s actions giving rise to the default, the petitioner could ... be deemed to have been apprised of the rule’s existence.” Id.(quoting Hutchison, 303 F.3d at 737).
¶14In 2002, in a non-capital case, the Sixth Circuit addressed the issue whether Ohio App. R. 26(B) represented an adequate state procedural rule as of 1998. Monzo v. Edwards, 281 F.3d 568, 577-78 (6th Cir. 2002). The court concluded that during the five years since the rule had been adopted in 1993, the Ohio courts had provided sufficient guidance as to what would not constitute good cause to render the rule firmly established and regularly followed. Id.
¶15In 2006, the Sixth Circuit again examined the timeliness requirement of Rule 26(B) in Franklin v. Anderson, 434 F.3d 412, 418-19 (6th Cir.2006), a capital case. The court considered whether Rule 26(B) was an “adequate and independent” state rule in 1993, a day before Rule 26(B) actually went into effect. At that time, the court held, Rule 26(B) was not firmly established and regularly followed and therefore did not represent an adequate and independent state rule. Id. at 421. The court noted in further support of its conclusion that, in the meantime, the Ohio Supreme Court had been “erratic in its handling of untimely Rule 26(B) applications in capital cases.” Id. at 420. Franklin was followed in Wilson v. Mitchell, 498 F.3d 491, 512 (6th Cir.2007), another capital case, in relation to a 1996 application to reopen.
¶16Even more recently, however, in Fau-tenberry, yet another capital case, the Sixth Circuit held that, as of January 1996, the time constraints of Rule 26(B) were firmly established and regularly followed. 515 F.3d at 641. The Fautenberry court deemed Franklin factually distinguishable, based on the state of Ohio law at the time the application to reopen should have been filed. Id.That is, although the rule was not firmly established in 1993, it had be*862come firmly established by 1996. Fauten-berry includes no mention of Wilson, but correctly emphasizes that the “firmly established and regularly followed” determination must be made as of the time Rule 26(B) was to be applied, 515 F.3d at 641, a consideration that may have been overlooked in Wilson, 498 F.3d at 512.
¶17Yet, any facial inconsistency between Fautenberry and Wilson is immaterial in this case. In Scuba v. Brigano, 527 F.3d 479, 488 (6th Cir.2007), the Sixth Circuit has made it clear that Ohio courts’ applications of Rule 26(B) in capital cases are irrelevant to the question whether Rule 26(B) was firmly established and regularly followed by the Ohio courts in non-capital cases. In relation to non-capital cases, Scuba reaffirms the holding of Monzo v. Edwards that Rule 26(B) was, by 1998, firmly established and regularly followed. Further, Scuba holds that Rule 26(B) continued to be an adequate and independent state procedural rule at least until July 2002, when Scuba filed his motion to reopen. Id.
¶18Because Parker’s petition arises in a non-capital case and his application to reopen was filed beyond the ninety-day period, in June 2001, when the timeliness requirements of Rule 26(B) were firmly established and regularly followed in non-capital cases, Scuba controls. It follows that the untimeliness of Parker’s application to reopen was an adequate and independent state procedural ground for the Ohio courts’ denial of the application.1 Parker’s procedural default was therefore properly held to foreclose habeas relief on his claim for ineffective assistance of appellate counsel.
¶19Ill
¶20Accordingly, the judgment of the district court denying the petition for habeas corpus is AFFIRMED.