Court of Appeals of Ohio, Eighth District, Cuyahoga
County Court of Common Pleas Case No. CR-15-595910-A
Application for Reopening Motion No. 510057
APPELLANT Antoinne Wynn, pro se.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Gregory Ochocki Assistant County
JOURNAL ENTRY AND OPINION
A. GALLAGHER, P.J.
Antoinne Wynn has filed an application for reopening pursuant
to App.R. 26(B). Wynn is attempting to reopen the appellate
judgment rendered in State v. Wynn, 8th Dist.
Cuyahoga No. 103824, 2017-Ohio-4062, which affirmed his
conviction for felonious assault. For the following reasons,
we deny the application for reopening.
App.R. 26(B)(1) plainly states that: "An application for
reopening shall be filed in the court of appeals where the
appeal was decided within ninety days from journalization of
the appellate judgment unless the applicant shows good cause
for filing at a later time." Likewise, App.R.
26(B)(2)(b) requires that Wynn establish "a showing of
good cause for untimely filing if the application is filed
more than 90 days after journalization of the appellate
judgment." The Ohio Supreme Court requires intermediate
appellate courts to strictly enforce App.R. 26(B)'s
90-day deadline, explaining as follows:
Consistent enforcement of the rule's deadline by the
appellate courts in Ohio protects on the one hand the
state's legitimate interest in the finality of its
judgments and ensures on the other hand that any claims of
ineffective assistance of appellate counsel are promptly
examined and resolved. Ohio and other states "may erect
reasonable procedural requirements for triggering the right
to an adjudication, " Logan v. Zimmerman Brush
Co., 455 U.S. 422, 437, 102 S.Ct. 1148, 71 L.Ed.2d 265
(1982), and that is what Ohio has done by creating a 90-day
deadline for the filing of applications to reopen. * * * The
90-day requirement in the rule is "applicable to all
appellants, " State v. Winstead, 74 Ohio St.3d
277, 278, 658 N.E.2d 722 (1996), and [the applicant] offers
no sound reason why he - unlike so many other Ohio criminal
defendants - could not comply with that fundamental aspect of
State v. Gumm, 103 Ohio St.3d 162, 2004-Ohio-4755,
814 N.E.2d 861, ¶ 7 - 8, ¶ 10. See also State
v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, 812 N.E.2d
970; State v. Cooey, 73 Ohio St.3d 411, 653 N.E.2d
252 (1995); and State v. Reddick, 72 Ohio St.3d 88,
647 N.E.2d 784 (1995).
On September 5, 2017, Wynn filed two separate documents: (1)
an application to reopen that failed to contain a sworn
affidavit required under App.R. 26(B)(2)(d), and (2) motion
for showing good cause for untimely filing of affidavit of
sworn statement. Wynn is attempting to reopen the appellate
judgment that was journalized on June 1, 2017. His
application - filed six days beyond the 90-day deadline - is
untimely on its face.
In an effort to establish good cause, Wynn argues
"significant hardships, " such as being held in
protective control and "extreme poverty, " which
have effectively deprived him of ready access to a law
library or other legal materials and services. The courts,
however, have repeatedly rejected the claim that limited
access to legal materials states good cause for untimely
filing. Prison riots, lockdowns and other library limitations
have been rejected as constituting good cause. State v.
Young, 8th Dist. Cuyahoga No. 99752, 2014-Ohio-1055,
reopening disallowed, 2016-Ohio-3165, citing
State v. Tucker, 73 Ohio St.3d 152, 652 N.E.2d 720
(1995); State v. Crain, 8th Dist. Cuyahoga Nos.
95012, 95013, 95014 and 95015, 2011-Ohio-1924, reopening
disallowed, 2012-Ohio-1340. Untimeliness alone is
sufficient to dismiss the application. Young at
Wynn has failed to demonstrate good cause for his untimely
application and, therefore, we are constrained to deny it.
Aside from being untimely, Wynn's request for reopening
is also barred by res judicata. "Res judicata may be
applied to bar further litigation of issues that were raised
previously or could have been raised previously in an
appeal." State v. Houston,73 Ohio St.3d 346,
347, 652 N.E.2d 1018 (1995). The Supreme Court of Ohio has
further established that a claim for ineffective assistance
of counsel may be barred by the doctrine of res judicata