Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No. CR-14-586069-A
Application for Reopening Motion No. 510335
APPELLANT, Brian Porter, pro se Inmate No. 684607 Lake Erie
Correctional Institution .
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Frank Romeo Zeleznikar Assistant County
JOURNAL ENTRY AND OPINION
T. GALLAGHER, P.J.
On September 13, 2017, the applicant, Brian Porter, pursuant
to App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d
60, 584 N.E.2d 1204 (1992), applied to reopen this
court's judgment in State v. Porter, 8th Dist.
Cuyahoga No. 102257, 2016-Ohio-1115, in which this court
affirmed Porter's convictions for three counts of
felonious assault and one count of discharge of a firearm on
or near prohibited premises, all with one- and three-year
firearm specifications. Porter claims that his appellate
counsel should have argued that his trial counsel was
ineffective for failing to investigate, to interview
witnesses and to obtain evidence; for failing to object to an
incorrect jury instruction on self-defense, duty to retreat,
and defense of others; and for failing to renew the motion
for a directed verdict at the end of the trial. On September 22,
2017, the state of Ohio filed its brief in opposition. For
the following reasons, this court denies the application.
App.R. 26(B)(1) and (2)(b) require applications claiming
ineffective assistance of appellate counsel to be filed
within 90 days from journalization of the decision unless the
applicant shows good cause for filing at a later time. Porter
filed his application approximately 18 months after this
court's March 17, 2016 decision. Thus, the application is
untimely on its face. Porter tries to show good cause by
arguing that the prison's limited legal assistance, as
well as the public defender's continued representation of
him to the United States Supreme Court, caused the untimely
filing. He also proffers that reopening the appeal is
necessary to correct manifest injustice. These arguments are
The courts have repeatedly rejected the claim that limited
access to legal materials states good cause for untimely
filing. Prison riots, lock downs, and other library
limitations have been rejected as constituting good cause.
State v. Tucker, 73 Ohio St.3d 152, 1995-Ohio-2, 652
N.E.2d 720; State v. Kaszas, 8th Dist. Cuyahoga Nos.
72546 and 72547, 1998 WL 598530 (Sept. 10, 1998),
reopening disallowed, 2000 WL 1195676 (Aug. 14,
Similarly, Porter's delay because his appellate counsel
was still representing him is fatal. The Supreme Court of
Ohio in State v. LaMar, 102 Ohio St.3d 467,
2004-Ohio-3976, 812 N.E.2d 970, and State v. Gumm,
103 Ohio St.3d 162, 2004-Ohio-4755, 814 N.E.2d 861, held that
the 90-day deadline for filing must be strictly enforced. In
those cases, the applicants argued that after the court of
appeals decided their cases, their appellate lawyers
continued to represent them, and their appellate lawyers
could not be expected to raise their own incompetence.
Although the Supreme Court agreed with this latter principle,
it rejected the argument that continued representation
provided good cause. In both cases, the court ruled that the
applicants could not ignore the 90-day deadline, even if it
meant retaining new counsel or filing the applications
themselves. The court then reaffirmed the principle that lack
of effort, lack of imagination, and ignorance of the law do
not establish good cause for failure to seek timely relief
under App.R. 26(B).
Finally, the court rejects Porter's claim of manifest
injustice. The Supreme Court of Ohio has made it very clear
that an applicant must show extraordinary reasons for not
timely filing. Claims of a "dead-bang winner" do
not state good cause. State v. Howard, 8th Dist.
Cuyahoga No. 97695, 2012-Ohio-3459, reopening
disallowed, 2018-Ohio-159, and State v. Willis,
8th Dist. Cuyahoga No.1010152, 2014-Ohio-3729, reopening
Accordingly, this court denies the application to reopen.
J STEWART, J, and PATRICIA ANN BLACKMON, J, CONCUR
Porter's appellate counsel did
argue, inter alia, ineffective assistance of trial counsel
for failing to object to the jury instruction on
self-defense, for not requesting a missing witness
instruction, and for not objecting to the failure to instruct
the jury that they were to consider the evidence of