STATE v. JONES (2001)

Per Curiam.  Appellant, Elwood H. Jones, was convicted of aggravated murder with death specifications, aggravated burglary, and aggravated robbery.   He was sentenced to death.   Upon appeal, the court of appeals affirmed the convictions and sentence.  State v. Jones (Aug. 28, 1998), Hamilton App. No. C-970043, unreported, 1998 WL 542713.   On direct appeal as of right, we also affirmed his convictions and sentence on December 27, 2000.  State v. Jones (2000), 90 Ohio St.3d 403, 739 N.E.2d 300.

On November 27, 1998, appellant filed an application for reopening with the court of appeals pursuant to App.R. 26(B) and State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, alleging ineffective assistance of appellate counsel in his direct appeal.

In denying appellant's application for reopening, the court of appeals relied on State v. McNeill (1998), 83 Ohio St.3d 457, 459, 700 N.E.2d 613, 615, and held that he had not properly alleged ineffective assistance of appellate counsel.   The court further held that if it were to assume that appellant had properly raised ineffective assistance of appellate counsel claims, he failed to state “ ‘the manner in which the deficiency [in appellate counsel's performance] prejudicially affected the outcome of the appeal,’ which is required by App.R. 26(B)(2)(d).”  (Bracketed material sic.)   The cause is now before the court upon an appeal as of right.

  We agree with the court of appeals that appellant failed to state a claim of ineffective assistance of appellate counsel.   The two-pronged analysis found in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate standard to assess whether Jones has raised a “genuine issue” as to the ineffectiveness of appellate counsel in his request to reopen under App.R. 26(B)(5).   See State v. Spivey (1998), 84 Ohio St.3d 24, 25, 701 N.E.2d 696, 697.

To justify reopening his appeal, Jones “bears the burden of establishing that there was a ‘genuine issue’ as to whether he has a ‘colorable claim’ of ineffective assistance of counsel on appeal.”  Id.

We have reviewed appellant's six propositions of law alleging deficient performance by appellate counsel.   In none of the six instances has Jones raised “a genuine issue as to whether [he] was deprived of the effective assistance of counsel on appeal” before the court of appeals, as required under App.R. 26(B)(5).

Judgment affirmed.

PER CURIAM.

MOYER, C.J., DOUGLAS, RESNICK, FRANCIS E. SWEENEY, SR., PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.