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eBook details

• Title: Smith v. State of Ohio Dept of Rehabilitation and Corrections
• Author : United States Court of Appeals Tenth Circuit
• Release Date : January 08, 2006
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 81 KB

Description

Petitioner-Appellant Scott M. Smith filed a petition for habeas corpus raising claims of double jeopardy and insufficient evidence. The district court denied Smiths petition on the ground that Smith could have pursued further remedies through the Ohio courts but lost that opportunity by failing to comply with the state procedural rules regarding the timing of filing an appeal to the Ohio Supreme Court. The district court rejected Smiths argument that his procedural default should be excused because of the ineffective assistance of his appellate counsel - namely, his counsels failure to provide him with timely notification of the judgment of the Ohio Court of Appeals - on the basis that Smith had no right to counsel before the Ohio Supreme Court. We disagree and instead conclude that the failure of Smiths counsel to provide Smith with timely notice of the decision of the Ohio Court of Appeals related to the representation on direct appeal of right at the Ohio Court of Appeals, a proceeding during which Smith had a right to counsel, and that counsels performance was constitutionally deficient. Nevertheless, we AFFIRM the dismissal of Smiths habeas petition on the ground that Smith cannot rely on ineffective assistance of counsel to overcome the procedural default of his claims because he has not shown that he would have timely appealed the decision of the Ohio Court of Appeals but for his counsels deficient performance, and thus he cannot show that he was prejudiced thereby.

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