Foster v. Warden, Chillicothe Correctional Institution

OPINION

STRANCH, Circuit Judge.

David Foster appeals the district court’s dismissal of his petition for a writ of habe-as corpus as procedurally defaulted in Ohio state court. He contends that the district court erred by not excusing the untimely filing of his state post-conviction petition so that his ineffective-assistance-of-counsel claim could be considered on the merits. We agree, concluding that there was cause and prejudice to excuse the procedural default. Nevertheless, we AFFIRM the district court because Foster fails to establish ineffective assistance of counsel.

I. BACKGROUND

In 2005,…