Rule 206 File Name: 12a0296p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT… v. Timothy P. Maloney

*The Honorable Carlos F. Lucero, Circuit Judge for the United States Court of Appeals for the
Tenth Circuit, sitting by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0296p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
RICHARD D. GOLDBERG ,
Petitioner-Appellant,
v.
TIMOTHY P. M ALONEY , et al.
Respondents-Appellees.
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No. 11-3305
Appeal from the United States District Court
for the Northern District of Ohio at Youngstown.
No. 4:03-cv-2190—Donald C. Nugent, District Judge.
Decided and Filed: August 31, 2012
Before: MOORE, WHITE, and LUCERO,* Circuit Judges.
_________________
COUNSEL
ON BRIEF: Brian E. Dickerson, ROETZEL & ANDRESS, LPA, Columbus, Ohio, for
Appellant. Linnette M. Stratford, MAHONING COUNTY PROSECUTOR’S OFFICE,
Youngstown, Ohio, for Appellee.
_________________
OPINION
_________________
CARLOS F. LUCERO, Circuit Judge. Richard Goldberg appeals the district
court’s denial of his 28 U.S.C. § 2241 petition for habeas relief. Exercising jurisdiction
under 28 U.S.C. § 1291, we AFFIRM the district court’s judgment.
1

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No. 11-3305 Goldberg v. Maloney, et al. Page 2
1Three actions underlie this appeal: Estate of Ellen Rose Mercurio, Estate of Towanna Williams,
and Estate of William R. Hunter. A fourth probate action, in which Goldberg appeared, Estate of Richard
C. Lanning, Jr., is not at issue.
2Goldberg received an additional 90 days’ imprisonment for failing to perform in accordance with
the court’s orders in Estate of Richard C. Lanning, Jr.
I
Goldberg, a medical malpractice attorney, appeared before Ohio Probate Judge
Timothy Maloney in several consolidated cases.1 Following complaints that Goldberg
concealed assets and retained unearned fees, Judge Maloney ordered Goldberg to pay
various amounts to the estates involved. After Goldberg failed to do so, Judge Maloney
directed him to show cause why he should not be held in contempt. Following a hearing,
Judge Maloney found Goldberg to be in criminal contempt for failing to comply with
prior court orders, and also cited Goldberg for attempting to suborn witnesses in each
of the cases—charges that did not appear on the hearing notice. Based on these
contempt rulings, Goldberg received a sentence of 18 months’ imprisonment.2
An Ohio appellate court affirmed Goldberg’s contempt sentence. Goldberg
subsequently retained new counsel and appealed to the state’s highest court. Before the
Ohio Supreme Court, Goldberg argued—for the first time—that he had not received
sufficient notice of the charges for which he was held in contempt, including whether the
charges were civil or criminal. He also argued that he had been denied effective
assistance of counsel because his former attorney failed to raise this notice claim at both
the trial and appellate levels. The Ohio Supreme Court declined further review.
Goldberg then filed a federal habeas petition in the United States District Court
for the Northern District of Ohio. Defendants filed a motion to dismiss arguing, among
other things, that Goldberg failed to exhaust his ineffective assistance of appellate
counsel claim pursuant to Ohio Appellate Rule 26. Goldberg did not address this
argument in a reply brief, but rather filed an amended complaint dismissing his
ineffective assistance claim. In 2004, the district court adopted a magistrate judge’s
recommendation granting habeas relief on the basis that Goldberg received
constitutionally inadequate notice of the charges against him. In addition, the court

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No. 11-3305 Goldberg v. Maloney, et al. Page 3
briefly addressed whether Goldberg’s notice claim was procedurally defaulted because
he failed to raise it before the state intermediate appellate court. Noting that Goldberg’s
proper exhaustion of his ineffective assistance of counsel claim was “necessary to
preserving his notice claim,” the district court rejected the respondents’ argument that
Goldberg “needed to file . . . a Rule 26(b) application” to exhaust that claim. It was
sufficient, the court held, to raise the claim “in a direct appeal to the Ohio Supreme
Court.”
Respondents timely appealed the district court’s determination. This Court
reversed. Goldberg v. Maloney (“Goldberg I”), No. 05-3487 (6th Cir. Jan. 31, 2007)
(unpublished). We acknowledged the district court’s remarks regarding exhaustion of
Goldberg’s ineffective assistance of counsel claim; however, we concluded that the
district court failed to reach the question of whether Goldberg procedurally defaulted his
notice claim. Addressing that question, we held that Goldberg had procedurally
defaulted on his lack-of-notice claim by failing to raise it in the state court of appeals.
Thus, we remanded the case to allow the district court to determine whether Goldberg
had “established cause and prejudice that might excuse the procedural default” of his
lack-of-notice claim. On remand, the district court determined that Goldberg had not
demonstrated sufficient cause or prejudice to overcome the procedural default, and
denied his petition for habeas relief.
II
A procedurally defaulted claim may be considered by a habeas court if “the
prisoner can demonstrate cause for the default and actual prejudice as a result of the
alleged violation.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). Both prongs “are
questions of law, which we review de novo.” Burroughs v. Makowski, 411 F.3d 665,
667 (6th Cir. 2005).
Goldberg argues that constitutionally ineffective assistance of counsel caused
him to default his notice claim. However, a claim that is itself procedurally defaulted
cannot be used as cause to excuse another procedurally defaulted claim. Edwards v.

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No. 11-3305 Goldberg v. Maloney, et al. Page 4
Carpenter, 529 U.S. 446, 453 (2000). We must therefore determine whether Goldberg’s
ineffective assistance claim is itself defaulted.
A
Goldberg raised his ineffective assistance claim for the first time in a petition for
review before the Ohio Supreme Court. The Ohio Supreme Court declined jurisdiction
and summarily dismissed the appeal. Although we generally presume that a state court
denying relief on a federal claim does so on the merits, we make an exception if an
applicable state-law procedural principle suggests an alternative explanation. See
Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011). This is such a case.
Ohio Appellate Rule 26 provides:
A defendant in a criminal case may apply for reopening of the appeal
from the judgment of conviction and sentence, based on a claim of
ineffective assistance of appellate counsel. An application for reopening
shall be filed in the court of appeals where the appeal was decided within
ninety days from journalization of the appellate judgment . . . .Ohio R.
App. P. 26(b)(1).
The rule offers defendants “a separate collateral opportunity” to raise ineffective
assistance claims subsequent to a direct appeal. Morgan v. Eads, 818 N.E. 2d 1157,
1158 (Ohio 2004). In Ohio v Davis, 894 N.E. 2d 1221 (Ohio 2008), the defendant filed
both an appeal to the Ohio Supreme Court and a Rule 26(B) application in the court of
appeals, both asserting for the first time the ineffective assistance of appellate counsel.
After the Ohio Supreme Court declined to accept the discretionary appeal, the court of
appeals refused to address the merits of Davis’s Rule 26(B) application, concluding that
consideration on the merits was barred by res judicata due to his unsuccessful appeal to
the Supreme Court. The Ohio Supreme Court disagreed, explaining that when it
“determines whether or not to accept jurisdiction in a particular case, it is not rendering
a decision on the merits.” Id. at 1225. The Supreme Court further explained that when
presented with a timely Rule 26(B) application the court of appeals is required to
determine whether there is a genuine issue as to whether the applicant was deprived of
the effective assistance of counsel on appeal. Thus, although a defendant may raise the

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No. 11-3305 Goldberg v. Maloney, et al. Page 5
3Unexhausted claims may be deemed procedurally defaulted if the state offers no mechanism
through which the petitioner could return to state court and exhaust the claim. See Alley v. Bell, 307 F.3d
380, 385 (6th Cir. 2002) (“[I]f an unexhausted claim would be procedurally barred under state law, that
claim is procedurally defaulted for purposes of federal habeas review.”), cert. denied, 540 U.S. 1086
(2003); see also State v. Davis, 894 N.E.2d 1221, 1224 (Ohio 2008) (holding that Ohio Supreme Court’s
decision not to review an ineffective assistance of appellate counsel claim is not a decision on the merits).
Rule 26(B) requires that applications be made within ninety days absent a showing of good cause. Ninety
days has passed and Goldberg has offered no cause for his delay, which would be difficult considering he
was aware of the argument at the time he sought discretionary appeal. Cf. Monzo v. Edwards, 281 F.3d
568, 577 (6th Cir. 2002) (holding that failure to establish good cause to excuse an untimely Rule 26(B)
application is an adequate state procedural ground).
ineffective assistance of counsel issue in both a timely direct appeal and a timely
application under Rule 26(B), the Ohio Supreme Court’s denial of the discretionary
appeal does not exhaust the issue because the court of appeals is nevertheless obliged to
address the application on the merits. In other words, raising a claim for ineffective
assistance of appellate counsel in a discretionary appeal to the Ohio Supreme Court,
without addressing the claim through Ohio Appellate Rule 26(b), does not satisfy the
exhaustion requirement unless the Ohio Supreme Court addresses the issue on the merits.
Goldberg does not claim to have filed a Rule 26 motion; nor does he argue that he could
now do so given the relevant deadline.3
B
In the alternative, Goldberg argues that applying Rule 26 would violate the law
of the case doctrine because in its 2005 order, the district court stated that “Ohio law
allows an ineffective assistance of appellate counsel claim to be raised through an Ohio
Appellate rule 26(b) application OR in a direct appeal to the Ohio Supreme Court.”
Under Goldberg’s theory, this statement by the district court somehow constrains our
ability to decide this case.
To be sure, when a case has been remanded by an appellate court, the trial court
is bound to “proceed in accordance with the mandate and law of the case as established
by the appellate court.” Hanover Ins. Co. v. Am. Eng’g Co., 105 F.3d 306, 312 (6th Cir.
1997). Once an appellate court “decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in the same case.” Scott v.
Churchill, 377 F.3d 565, 569-70 (6th Cir. 2004) (quotation and citation omitted); see
also Westside Mothers v. Olszewski, 454 F.3d 532, 538 (6th Cir. 2006).

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This Court, however, has never decided that Goldberg is exempt from the
requirements of Rule 26, whether “explicitly or by necessary inference.” Hanover, 105
F.3d at 312 (quotation omitted). In Goldberg I, we noted that the “district court held that
his ineffective assistance claim was not procedurally defaulted,” but we did not address
the merits of that holding. Indeed, the necessary inference from our remand decision is
that the question of whether ineffective assistance of appellate counsel could save
Goldberg’s lack-of-notice claim from procedural default remained unresolved. Further,
the simple observation by the district court that Ohio law permits an ineffective
assistance claim to be raised in either manner when still within the time limits for both
does not address whether a defendant who is denied discretionary review by the Supreme
Court must then file a Rule 26(B) motion to exhaust the claim.
C
Goldberg also contends that Rule 26 does not apply to appeals from criminal
contempt proceedings because they are not “criminal case[s]” within the meaning of the
rule. It is true that “[c]ontempt proceedings are often classified as sui generis, neither
civil nor criminal.” State ex rel. Corn v. Russo, 740 N.E.2d 265, 269 (Ohio 2001); see
also Brown v. Executive 200, Inc., 416 N.E.2d 610, 612 (Ohio 1980). Nevertheless,
“most courts distinguish between civil and criminal contempt proceedings,” based on the
“purpose to be served by the sanction,” Corn, 740 N.E.2d at 269, and the parties agree
that the probate court found Goldberg guilty of criminal contempt.
The Supreme Court has described criminal contempt as a “crime in the ordinary
sense.” Bloom v. Illinois, 391 U.S. 194, 201 (1968). Accordingly, it has extended to
criminal contempt proceedings a variety of constitutional protections—including the
right to counsel—applicable in ordinary criminal cases. See Cooke v. United States,
267 U.S. 517, 537 (1925); see also United States v. Dixon, 509 U.S. 688, 696 (1993)
(double jeopardy); Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 632 (1988) (proof
beyond a reasonable doubt); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444
(1911) (privilege against self-incrimination and presumption of innocence).

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No. 11-3305 Goldberg v. Maloney, et al. Page 7
Goldberg argues that he was constitutionally entitled to effective assistance of
counsel in his criminal contempt proceeding, while insisting that his is not a criminal
case for the purposes of enforcing this entitlement. But Goldberg cannot have it both
ways. We think it plain that the term “criminal case” as used in Rule 26, refers to those
cases in which there is a constitutional right to counsel because of the criminal penalties
at stake. See, e.g., State v. Komadina, No. 03CA008325, 2004 WL 2244368, at *1 (Ohio
Ct. App. Sept. 22, 2004) (unpublished) (granting Ohio App. R. 26(B) application to
reopen criminal contempt case). Thus, Goldberg’s ineffective assistance claim is
procedurally defaulted because he failed to comply with Rule 26.
III
Because Goldberg cannot show cause to excuse his procedural default, we
AFFIRM.

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