Application for Reopening the Appeal (App.R. 26(B))
Ohio law allows every defendant in a criminal case to apply for the reopening of his or her appeal based on a claim of ineffective assistance of appellate counsel. However, an application for reopening must be filed within ninety days of the appellate Opinion unless the applicant can show good cause for filing at a later time.
An Application for Reopening cannot re-litigate issues from the original appeal or challenge the appellate Decision. Rather, in an Application for Reopening, the Appellant must establish “a colorable claim” of ineffective assistance of appellate counsel. The standard for proving “ineffective assistance of appellate counsel” is the same standard for proving “ineffective assistance of trial counsel.” The Appellant must demonstrate counsel’s performance was deficient and that, but for counsel’s errors, a reasonable probability exists that the outcome of the appeal would have been different.
Because an Application for Reopening raises claims of ineffectiveness, new counsel must re-trace appellate counsel’s steps to discover what was missed. If a Court of Appeals grants an Application for Reopening, it will also issue a briefing schedule and the case will generally follow the rules and timelines of a Direct Appeal.
“Good cause” for filing beyond the 90 day deadline is very difficult to prove. If you believe your appellate counsel was ineffective, time may be running out. Call Harris Law Firm, LLC today to schedule your consultation.