Scuba v. Brigano

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0878n.06
Filed: December 27, 2007

No. 04-3895

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

)
ROBERT S. SCUBA, )
) ON APPEAL FROM THE UNITED
Petitioner-Appellant, ) STATES DISTRICT COURT FOR THE
) NORTHERN DISTRICT OF OHIO
v. )
)
ANTHONY BRIGANO, Warden, )
) OPINION
Respondent-Appellee. )
_______________________________________ )

Before: KEITH, GRIFFIN, Circuit Judges, and VAN TATENHOVE, District Judge.*

VAN TATENHOVE, District Judge. Robert S. Scuba was convicted in Geauga County,

Ohio, on one count of aggravated robbery and one count of felonious assault. After a lengthy appeals

process, Scuba filed a petition for a writ of habeas corpus in federal district court. The district court

dismissed Scuba’s petition, finding that he had procedurally defaulted his state court claims.

Because we agree, the dismissal of Scuba’s habeas petition is affirmed.

I. Background

For the purposes of this appeal, the parties agree to the facts that unfolded on September 4,

1997. On that day, Scuba and two others, brandishing weapons, entered the home of Gordon Faith.

*
The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern
District of Kentucky, sitting by designation.
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During a struggle, Scuba grabbed Faith by his hair and threw him down. He then bound Faith’s arms

and legs with duct tape, beat him, and threatened to shoot him. While the others were searching the

house, a smoke alarm sounded, causing all three intruders to flee. Eventually, Faith managed to

summon help and was taken to the hospital where he was treated for fractures to his eye socket and

skull, broken ribs and nose, and numerous lacerations. Upon Scuba’s conviction in 1998, the trial

court sentenced Scuba to ten years on the first count (aggravated robbery), seven years on the second

count (felonious assault), and three years for the firearms violation, all to be served consecutively.

With the assistance of his trial counsel, Scuba appealed his conviction and sentence on five

grounds. Relevant to the current appeal, Scuba raised the following arguments as his fourth and fifth

grounds respectively: (1) “the trial judge abused his discretion by sentencing the Appellant to

consecutive terms of incarceration when the factual findings relied on were against the manifest

weight of the evidence;” and (2) “the trial court committed reversible error when sentencing

Appellant to the maximum prison term allowed under the sentencing guidelines for aggravated

robbery because such sentence was not supported by the record.” [Joint Appendix (“JA”) at 67.]

The appellate court affirmed Scuba’s conviction and the consecutive nature of his sentences but

remanded the case because “[t]he trial court must [and failed to] adequately state its reasons . . . for

imposing the maximum sentence pursuant to [Ohio statutory law.]” [JA at 131-45.]

Prior to his re-sentencing and with the assistance of new counsel, Scuba filed a Notice of

Appeal along with a Motion for Delayed Appeal in the Supreme Court of Ohio. The Supreme Court

granted the motion but ultimately dismissed “the appeal as not involving any substantial

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constitutional question.” [JA at 229.] None of Scuba’s assignments of error to the Supreme Court

invoked federal constitutional issues. Additionally, Scuba’s only claim related to his sentence was

that “[t]he trial court abused its discretion in sentencing defendant-appellant to consecutive terms

when the trial court merely recites the statutory provisions and the evidence was against the manifest

weight of the evidence.” [JA at 185.]

At his re-sentencing, the trial court permitted Scuba to represent himself pro se but appointed

a standby legal advisor. The trial court imposed the same sentence, with the exception that Scuba

received nine years for aggravated robbery, rather than his initial ten. His sentences were again to

be served consecutively.

Scuba appealed this sentence as well, raising three claims of error. The appellate court

concluded that two issues were barred as res judicata. That court noted that it had “already addressed

the issue of consecutive sentences [in Scuba’s first appeal], and . . . Scuba failed to raise the issue

that he was issued excessive prison terms as a punishment for failing to enter a plea agreement in

his initial appeal.” [JA at 425.] Scuba’s third assignment of error, based on the denial of his motion

for the trial judge to recuse for re-sentencing, was dismissed as moot because the Ohio Supreme

Court had already denied an affidavit of disqualification from Scuba.

Next, after nearly four years of legal challenges, Scuba appealed pro se to the Supreme Court,

alleging two assignments of error:

Whether the appellant was denied Due Process of Law under Article I, §16 of the
Ohio Constitution and the Fourteenth Amendment of the United States Constitution,
when the appellate court failed to adjudicate and reach the merit of appointed
appellate counsels [sic] Motion for Leave to Appeal Consecutive Sentences as Allied

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Offenses Of [sic] Similar Import; Alternatively, Defendant-Appellant’s Application
For Reopening.

Whether appellant was deprived of his rights under the Fifth Amendment of the
United States Constitution from double jeopardy . . . because the trial and appellate
court(s) failed to apply the Allied Offenses of Similar Import to appellant’s
convictions . . . .

[JA at 438.] The Supreme Court dismissed the appeal “as not involving any substantial

constitutional question” on August 7, 2002. [JA at 469.]

Scuba’s long litigation project also produced several collateral motions,1 including an

untimely Application to Reopen [Appellant’s Original] Direct Appeal pursuant to Ohio Rule of

Appellate Procedure 26(B). Scuba filed the Application while his “re-sentencing appeal” was still

pending with the appellate court. Under Rule 26(B), a defendant has ninety days to file an

application for reopening.

The appellate court issued its judgment triggering the ninety-day deadline on or about

November 8, 1999. In his Application, Scuba alleged that all three attorneys who acted as his

counsel at various times were ineffective. Specifically, he contended that his counsel were

collectively ineffective for failing to file an Application to Reopen within the ninety-day deadline.

Scuba further argued that he had been denied Due Process of law for a variety of reasons and that

he was deprived of his Fifth Amendment protection from double jeopardy, regarding his consecutive

1
For instance, he filed a pro se “Motion for Nunc Pro Tunc Judgment Entry . . .” on April
8, 2001, with the trial court. [JA at 471.] Scuba subsequently appealed the denial of that motion,
and the appellate court affirmed, noting that the issues concerned therein were already on appeal
and that nunc pro tunc judgment entries could not be used to accomplish the relief Scuba sought.

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Scuba v. Brigano

sentences for aggravated robbery and felonious assault. The Eleventh District Court of Appeals

dismissed the Application on April 16, 2003, based upon Scuba’s failure to show cause “why he []

waited over two and one-half years to file an application for reopening.” [JA at 601, 604.]

Scuba’s original petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 was filed

on July 12, 2001. The district court dismissed that petition without prejudice, as Scuba’s “re-

sentencing appeal” was still pending in state court. Scuba then filed his current pro se petition on

August 21, 2003, raising eight grounds for relief. Because Scuba only contested the State’s

Answer/Return of Writ with regard to three of his claims for relief, only those three grounds remain

relevant to this appeal. The grounds are as follows:

GROUND ONE: Petitioner was deprived of his Fourteenth Amendment Rights
because the (11th District) Court of Appeals failed to properly adjudicate, barred by
the doctrine of res judicata, appellate counsel’s Motion to Leave to Appeal
Consecutive Sentences as Allied Offenses of Similar Import, Alternatively,
Application for Reopening.2

2
“Allied Offenses of Similar Import” is a reference to § 2941.25(A) of the Ohio Code,
which states: “Where the same conduct by defendant can be construed to constitute two or more
allied offenses of similar import, the indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.” OHIO REV . CODE ANN . § 2941.25(A)
(2007). The Ohio courts cite federal Double Jeopardy jurisprudence as insightful to § 2941.25
analysis, though not dispositive. State v. Rance, 710 N.E.2d 699, 702 (Ohio 1999). As a result,
when multiple offenses survive the Blockburger test (i.e. each offense requires proof of an
element that the other does not), precedent indicates by and large that the offenses are not allied
offenses of similar import, though legislative intent is dispositive. Id. (aggravated robbery and
involuntary manslaughter are not allied offenses); Blockburger v. United States, 284 U.S. 299
(1932); see also State v. Preston, 491 N.E.2d 685 (Ohio 1986) (aggravated robbery and felonious
assault not allied offenses); State v. McCoy, 2006 Ohio 56 (Ohio Ct. App. 2006) (attempted
murder and felonious assault, same); State v. Allen, 685 N.E.2d 1304 (Ohio Ct. App. 1996)
(aggravated robbery and felonious assault, same).

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GROUND TWO: Petitioner was deprived of his Rights under the Fifth Amendment
from Double Jeopardy as applicable to the states through the Due Process Clause of
the Fourteenth Amendment because the trial court failed to apply Allied Offenses of
Similar Import to Petitioner[’]s convictions, and by the appellate court’s dismissal
of the issue on appeal, barred by the doctrine of res judicata.

GROUND FIVE: Petitioner was deprived of his Fourteenth Amendment Rights
because the 11th district court of appeals dismissed, failed to adjudicate petitioner[’]s
application for reopening raising a viable issue petitioner was denied choice of
counsel prior to trial depriving him of his Sixth and Fourteenth Amendment Rights.

[JA at 7, 11-12, 15.]

The Magistrate Judge concluded that Scuba’s claims were procedurally defaulted and,

therefore, recommended that his petition be dismissed. The district court adopted the Report and

Recommendation (“R&R”) on the same grounds pursuant to 28 U.S.C. § 2254.

II. Analysis

A. Waiver

The State argues that Scuba waived his right to appeal the dismissal of his habeas petition

by failing to file objections, or move for an extension of time to object, to the Magistrate Judge’s

R&R within the prescribed time period. The R&R contained the following notice: “ANY

OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Courts within

ten (10) days of receipt of this notice. Failure to file objections within the specified time WAIVES

the right to appeal the District Court’s order.” [JA at 896 (citations omitted).] The R&R was dated

and entered on May 17, 2004. The district court entered an order adopting the R&R on June 7. The

next day, Scuba’s Motion to Extend Time for Filing Objections to Magistrate Judge’s Report and

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Recommendation was entered on the docket.

Scuba contends that he received the R&R, and first notice thereof, on or about May 21, as

he was an incarcerated pro se petitioner. Nothing in the record suggests to the contrary. According

to FED . R. CIV . P. 6(a), “[w]hen the period of time prescribed or allowed is less than 11 days,

intermediate Saturdays, Sundays, and legal holidays shall be excluded from the computation.” As

such, excluding May 22, 23, 29, 30, June 5, and 6 as weekend days and May 31, 2004, as Memorial

Day, the deadline for Scuba to file objections was June 7. Although Scuba’s Motion was not entered

on the docket until June 8, the certificate of service indicates that it was sent via U.S. Mail on May

25. Therefore, pursuant to the federal pro se prisoner mailbox rule, Scuba’s Motion “was filed at

the time petitioner delivered it to the prison authorities for forwarding to the court clerk.” Houston

v. Lack, 487 U.S. 266, 276 (1988); see also Lyons-Bey v. Pennell, 93 F. App’x. 732 (6th Cir. 2004)

(pro se prisoner mailbox rule applied to response to motion to dismiss civil complaint).

Accordingly, Scuba timely moved the district court for additional time to object to the Magistrate

Judge’s R&R. Because the district court improperly denied Scuba’s Motion for being out of time

to object, this Court exercises jurisdiction over the instant appeal.

B. Procedural Default

The Sixth Circuit employs a four-part test to determine whether procedural default is a bar

to a petitioner’s claims. Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986). “First, the court must

determine that there is a state procedural rule that is applicable to the petitioner’s claim and that the

petitioner failed to comply with the rule.” Id. at 138 (citations omitted). “Second, the court must

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decide whether the state courts actually enforced the state procedural sanction.” Id. (citations

omitted); see also Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). Third, the state procedural

forfeiture must be an “adequate and independent” state ground on which the state can rely to

foreclose review of a federal constitutional claim. Maupin, 785 F.2d at 138. Finally, if these three

prerequisites are met, “the petitioner must demonstrate under Sykes that there was ‘cause’ for him

to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional

error.” Id. (citing in part Wainwright v. Skyes, 433 U.S. 72, 87 (1977)).

Scuba’s first two grounds for relief in his habeas petition are procedurally distinct from his

final ground for relief. His first two grounds are based upon his direct appeals in state court and

pertain to his challenge of the consecutive nature of his sentences. Scuba’s final ground for relief

(labeled as his fifth ground) is based on the state court of appeals’ denial of his Application to

Reopen [Appellant’s Original] Direct Appeal as untimely. This Court has ruled that an application

to reopen a direct appeal in Ohio under Rule 26(B) is a collateral attack to a defendant’s conviction

and is not part of a direct appeal. Lopez v. Wilson, 426 F.3d 339, 352 (6th Cir. 2005). Therefore,

the issues of procedural default on direct appeal are considered separately from issues of default on

collateral attack, as set forth below.

1. Consecutive Sentences

In his first appeal, Scuba argued that “the trial judge abused his discretion by sentencing the

Appellant to consecutive terms of incarceration when the factual findings relied on were against the

manifest weight of the evidence.” [JA at 67.] The court of appeals affirmed the lower court on this

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issue but remanded for re-sentencing on Scuba’s conviction for aggravated robbery. On appeal from

his re-sentencing, Scuba argued that the trial court committed error by imposing consecutive

sentences on convictions that clearly arose from allied offenses of similar import. The court of

appeals affirmed the lower court, finding that it had already considered the nature of Scuba’s

sentences as consecutive in Scuba’s first appeal and that his assignment of error was barred as res

judicata.

As a matter of comity for the states’ capacity and duty to enforce federal law, a habeas

petitioner is first required to “fairly present” his federal claims in state court before seeking relief in

the federal court. Whiting v. Burt, 395 F.3d 602, 612-13 (6th Cir. 2005) (citing Baldwin v. Reese,

541 U.S. 27 (2004)). The Sixth Circuit employs a four-part test in determining whether a petitioner

has “properly asserted both the factual and legal basis [in state court] for his [constitutional] claim.”

Id. at 613. The Court examines the petitioner’s claims in state court for:

(1) reliance upon federal cases employing constitutional analysis; (2) reliance upon
state cases employing federal constitutional analysis; (3) phrasing the claim in terms
of constitutional law or in terms sufficiently particular to allege a denial of a specific
constitutional right; or (4) alleging facts well within the mainstream of constitutional
law.

Id. (quoting McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000)).

In his first direct appeal, Scuba challenged his consecutive sentences for aggravated robbery

and felonious assault on purely state law grounds. He contended that the trial judge’s factual

findings were not supported by the record. Thus, Scuba claimed, the trial judge failed to lay a proper

factual foundation for the imposition of consecutive sentences under Ohio statutory law. OHIO REV .

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CODE ANN . § 2929.14(E)(4) (2007).

On appeal from his re-sentencing, Scuba argued that because his aggravated robbery and

felonious assault charges were “allied offenses of similar import” under Ohio Revised Code §

2941.25(A), it was error to sentence him consecutively for the violation of these counts. Pursuant

to § 2941.25(A), “if multiple offenses are of similar import, the indictment or information may

contain counts for all such offenses, but the defendant may be convicted of only one.” OHIO REV .

CODE ANN . § 2941.25(A) (2007). Had Scuba presented this issue in his original appeal, he would

have satisfied the “fair presentation” criteria for asserting a Fifth Amendment, Double Jeopardy

Clause, challenge to his consecutive sentencing. Ohio’s allied offense statute compliments federal

double jeopardy jurisprudence, and the state courts consult federal jurisprudence as informative of

what does and does not constitute an “allied offense of similar import.” See supra, n.2.

Furthermore, Scuba’s brief specifically cited the Double Jeopardy Clause and discussed the seminal

federal constitutional case on double jeopardy, Blockburger v. United States, 284 U.S. 299 (1932).

Id. Nevertheless, the court of appeals properly found that Scuba had already presented and lost an

appeal on the consecutive nature of his sentences, thereby precluding his claim. Scuba, therefore,

had a full and fair opportunity to litigate his constitutional claim in his original direct appeal and

failed to do so.

A review of the Maupin factors supports the conclusion that Scuba procedurally defaulted

his allied offense/double jeopardy claims. “Ohio has a rule that claims must be raised on direct

appeal if possible; otherwise, res judicata bars their litigation in subsequent state proceedings. This

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rule was consistently applied in [Scuba’s] case.” Seymour v. Walker, 224 F.3d 542, 555 (6th Cir.

2000); see Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001) (Ohio’s doctrine of res judicata is “an

independent and adequate” state ground under Maupin).

Because the state court had an adequate basis for determining that Scuba defaulted his Fifth

Amendment/allied offense claim for purposes of his second direct appeal, Scuba is left with the

burden of demonstrating both ‘cause’ for not raising his constitutional claim in his original direct

appeal and prejudice resulting from the alleged constitutional error. Maupin, 785 F.2d at 138. Scuba

contends that his counsels’ ineffective assistance supplies the requisite cause.

Discussing that very proposition, this Court has held that:

[while] ineffective assistance of counsel may constitute cause, “the mere fact that
counsel failed to recognize the factual or legal basis for a claim, or failed to raise the
claim despite recognizing it, does not constitute cause for a procedural default.” In
fact, “the existence of cause for a procedural default must ordinarily turn on whether
the prisoner can show that some objective factor external to the defense impeded
counsel’s efforts to comply with the State’s procedural rule.”

Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994) (citation omitted). The Court cannot find here that

the failure of Scuba’s counsel to raise an allied offense—and by implication, double

jeopardy—argument on his first appeal amounted to cause sufficient to excuse procedural default.

Regardless, such failure resulted in no actual prejudice to Scuba.

The Court will also not ignore the obvious: conviction and consecutive sentencing for both

aggravated robbery and felonious assault is constitutionally sufficient under the Fifth Amendment

pursuant to Blockburger. While felonious assault requires proof that the defendant “[c]ause[d] or

attempt[ed] to cause physical harm to another,” OHIO REV . CODE ANN . § 2903.11(A)(2) (2007),

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aggravated robbery requires no such proof, OHIO REV . CODE ANN . § 2911.01 (2007). Conversely,

aggravated robbery requires that the defendant was “attempting or committing a theft offense,” but

felonious assault has no such element. Id.; see Robertson v. Morgan, 227 F.3d 589, 593-94 (6th Cir.

2000); see also supra, n.2. Therefore, Scuba’s counsel cannot be found to have been constitutionally

ineffective for failing to raise a double jeopardy argument on appeal. See Strickland v. Washington,

466 U.S. 668, 694 (1984); Benge v. Johnson, 474 F.3d 236, 248 (6th Cir. 2007); Howard v.

Bouchard, 405 F.3d 459, 485 (6th Cir. 2005) (“Having found that neither [Petitioner’s] trial

counsel’s performance nor his appellate counsel’s performance prejudiced him under the Strickland

inquiry, we thus find that [Petitioner] has failed to establish ‘cause’ to excuse procedural default.”).

Notwithstanding the dispositive analysis above, even if Scuba were capable of showing cause

for procedural default in the form of ineffective assistance of counsel, the only time that Scuba

alleged that his counsel was ineffective for failing to raise a Fifth Amendment challenge was

collaterally in his Application to Reopen his direct appeal. In contrast to his Application, when

Scuba appealed the dismissal of his second direct appeal to the Ohio Supreme Court, he did not raise

an ineffective assistance of counsel claim. Instead, he argued that the court of appeals erred in not

adjudicating the merits of his underlying allied offense/double jeopardy claims.

The Supreme Court has held that a defendant generally must present the claim of ineffective

assistance of counsel to the state courts as “an independent claim before it may be used to establish

cause for a procedural default.” Murray v. Carrier, 477 U.S. 478, 488-89 (1986). Indeed, an

ineffective assistance of counsel claim can itself be procedurally defaulted. Edwards v. Carpenter,

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529 U.S. 446, 453 (2000); see also Richey v. Mitchell, 395 F.3d 660, 679 (6th Cir. 2005). For the

reasons discussed in the following section regarding Scuba’s Rule 26(B) Application, Scuba’s

ineffective assistance argument has in fact been procedurally defaulted. Scuba has not demonstrated

cause for that default.

Finally, it bears noting that with respect to the three grounds upon which Scuba appeals the

dismissal of his current habeas case, Scuba persists in his assertion that the state courts improperly

adjudicated various elements of Scuba’s case. Notably, however, he does not raise an independent

claim alleging ineffective assistance of counsel.

2. Untimely Application to Reopen

In his fifth ground for habeas relief, Scuba argued that the appellate court “failed to

adjudicate petitioner[’]s application for reopening raising a viable issue petitioner was denied choice

of counsel prior to trial depriving him of his Sixth and Fourteenth Amendment Rights.” [JA at 15.]

In his Application to Reopen, Scuba for the first time asserted a deprivation of his Sixth and

Fourteenth Amendment rights on the issue of ineffective assistance of counsel with regard to choice

of counsel.

The Court again utilizes the Maupin factors to determine whether procedural default is a bar

to Scuba’s claims. 785 F.2d at 138. First, Ohio Rule of Appellate Procedure 26(B), which governs

the reopening of a direct appeal, contains a filing deadline that constitutes a “state procedural rule

that is applicable to the petitioner’s claim.” Id. Scuba failed to comply with that rule by filing his

application over two years past the deadline without good cause. Id. Regarding the second Maupin

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factor, the state court of appeals, upon finding that Scuba failed to show good cause for his delay,

enforced the rule by dismissing Scuba’s application as untimely. Id.

Addressing the third Maupin factor, Scuba argues that the state procedural bar is not an

‘adequate and independent’ state ground because Ohio does not apply the rule uniformly. “[O]nly

a ‘firmly established and regularly followed state practice’ may be interposed by a State to prevent

subsequent review by [the federal courts] of a federal constitutional claim.” Ford v. Georgia, 498

U.S. 411, 423-24 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348-51 (1984)). Scuba string-

cites eleven cases as evidence for his proposition that the timeliness/good cause rule is not “firmly

established and regularly followed.” However, closer examination of the cases reveal that they are

all—without fail—capital cases in which the Supreme Court of Ohio exercised its jurisdiction over

the case as an appeal of right, in compliance with Ohio Supreme Court Rule II(A)(1).3 These cases

are irrelevant, and Scuba ignores this Court’s precedent regarding Rule 26(B) in non-capital cases

like his:

Our review of Ohio law leads us to conclude that there was sufficient guidance as to
what would not constitute good cause at the time the rule was applied in this case.
We do not dwell on the decisions issued shortly after the Murnahan decision, as the
Ohio courts have had several years since then to consider the “good cause”
requirement.

3
That Rule states in part:

An appeal of a case in which the death penalty has been affirmed for an offense
committed prior to January 1, 1995, an appeal from the decision of a court of appeals
under App. R. 26(B) in a capital case, or a case that originated in the court of appeals
invokes the appellate jurisdiction of the Supreme Court and shall be designated an appeal
of right.

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Monzo v. Edwards, 281 F.3d 568, 578 (6th Cir. 2002) (citations omitted). Monzo was decided in

February of 2002, and Scuba filed his Application to Reopen in July of that same year.

Because the first three Maupin factors favor a finding of procedural default, Scuba bears the

burden of demonstrating “that there was ‘cause’ for him to not follow the procedural rule and that

he was actually prejudiced by the alleged constitutional error.” Maupin, 785 F.2d 138. As cause for

failing to file in time, Scuba argued that all three of his prior counsel were ineffective. Considering

this argument, the court of appeals found:

Even if we were to hold these attorneys’ collective failure to file an application for
reopening constitutes good cause, “‘such good cause has long since evaporated.
Good cause can excuse the lack of a filing only while it exists, not for an indefinite
period.’” The decision in Scuba’s initial appeal was released in November 1999. He
has been represented by three different attorneys since this decision was released.
Scuba does not explain why he has waited over two and one-half years to file an
application for reopening.

[JA at 604 (citation omitted).] In his current appeal, Scuba also fails to show good cause for his long

delay in filing.

Even if Scuba had been more diligent in filing his application closer to the ninety-day

deadline, Scuba’s counsel could not have been “ineffective” for failing to file an application on his

behalf. Ohio Appellate Rule 26(B) filings are collateral proceedings to which a defendant has no

Sixth Amendment right to the assistance of counsel. Lopez v. Wilson, 426 F.3d 339, 352 (6th Cir.

2005); see also Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (“Since respondent had no

constitutional right to counsel, he could not be deprived of the effective assistance of counsel by his

retained counsel’s failure to file the application timely.”); Jackson v. Johnson, 217 F.3d 360, 364

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(5th Cir. 2000) (no constitutional right to counsel for purposes of filing a rehearing motion; counsel

on direct appeal has no duty to inform a client of the option to file the same pro se). Accordingly,

because Scuba cannot satisfy the cause and prejudice requirement of Maupin, he has procedurally

defaulted the claims he first raised in his Application to Reopen, including his Fifth Ground for relief

in his current petition.

III. Conclusion

For the foregoing reasons, the dismissal of Scuba’s petition for a writ of habeas corpus is

affirmed.

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