COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61077 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : YAQUB ABDUL NUR : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 17, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-226686. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Yaqub Abdul Nur, pro se No. 207-588 P.O. Box 57 Marion, OH 43302 -2- DAVID T. MATIA, C.J.: Defendant-appellant, Yaqub Nur, appeals from the denial of his petition for post-conviction relief. The appellant's appeal is not well taken. I. THE FACTS A. THE INDICTMENT On June 3, 1988, the appellant was indicted by the grand jury of Cuyahoga County for one count of aggravated murder in violation of R.C. 2903.01 with a mass murder specification and an aggravated felony specification and one count of attempted murder in violation of R.C. 2903.02 and R.C. 2923.02 with an aggravated felony specification. B. THE ARRAIGNMENT On June 21, 1988, the appellant was arraigned whereupon a plea of not guilty was entered to both counts of the indictment. C. THE JURY TRIAL AND CONVICTION On December 12, 1988, the trial court amended the first count of the indictment to the offense of murder in violation of R.C. 2903.02. Following a trial before a jury, the appellant was found guilty of the offense of murder as charged in the first count of the indictment and not guilty of attempted murder as charged in the second count of the indictment. On December 16, 1988, the trial court sentenced the appellant to incarceration within the Correctional Reception Center, Orient, Ohio, for a term of fifteen years to life. D. THE APPELLANT'S DIRECT APPEAL -3- On January 23, 1989, the appellant filed a notice of appeal to this court from his conviction for the offense of murder. On June 21, 1990, the appellant's conviction for the offense of murder was affirmed by this court in State v. Nur (June 21, 1990), Cuyahoga App. No. 57132, unreported. E. THE APPELLANT'S PETITION FOR POST-CONVICTION RELIEF On May 31, 1990, the appellant filed with the trial court a petition for post-conviction relief pursuant to R.C. 2953.21. On June 14, 1990, the prosecutor filed a motion to dismiss the appellant's petition for post-conviction relief. On December 5, 1990, the trial court journalized its findings of fact and conclusions of law which denied the appellant's petition for post-conviction relief without the benefit of a hearing. F. THE APPELLANT'S TIMELY APPEAL On December 27, 1990, the appellant filed a notice of appeal from the judgment of the trial court which denied the appellant's petition for post-conviction relief. II. THE DOCTRINE OF RES JUDICATA MUST BE APPLIED TO THE APPELLANT'S PRESENT APPEAL A. THE APPELLANT PRESENTS SEVEN ASSIGNMENTS OF ERROR The appellant, through his present appeal, raises seven assignments of error. These seven assignments of error involve the following issues: 1) evidence introduced at trial of the appellant's "other acts"; 2) prosecutor tampered with evidence and withheld evidence favorable to the appellant; 3) trial court failed to instruct the jury with regard to the lesser included -4- offenses of murder; 4) ineffective assistance of counsel; 5) members of the appellant's race were unconstitutionally excluded from the jury; 6) the conviction for murder was against the manifest weight of the evidence; and 7) the trial court failed to conduct a hearing prior to the dismissal of the appellant's petition for post-conviction relief. It should also be noted that the first six assignments of error as raised on appeal were also raised by the appellant in the petition for post-conviction relief which was filed with the trial court. B. THE DOCTRINE OF RES JUDICATA AND A CRIMINAL APPEAL The doctrine of res judicata, however, prevents this court from considering any defense or any claimed lack of due process which was raised or could have been raised at the trial level or upon direct appeal. The Supreme Court of Ohio will apply the doctrine of res judicata in determining whether postconviction relief should be given under Section 2953.21 et seq., Revised Code. State v. Perry (1967), 10 Ohio St.2d 175, paragraph eight of the syllabus. Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment. -5- State v. Perry, supra, paragraph nine of the syllabus. (Emphasis added.) In addition, a claim of ineffective assistance of counsel cannot be raised through a petition for post-conviction relief where the defendant, who was represented by new counsel on direct appeal, raised or failed to raise the claim on direct appeal and subsequently fails to overcome the presumption of effective assistance of counsel with specific operative facts dehors the record. Again, the doctrine of res judicata would bar this court from considering a claim of ineffective assistance of counsel vis-a-vis a petition for post-conviction relief. State v. Cole (1982), 2 Ohio St.3d 112; State v. Ishmail (1981), 67 Ohio St.2d 16; State v. Apanovitch (1991), 70 Ohio App.3d 758. C. SIX OF THE THE APPELLANT'S ASSIGNMENTS OF ERROR ARE NOT REVIEWABLE AS A RESULT OF THE DOCTRINE OF RES JUDICATA In the case sub judice, the appellant's first assignment of error ("other acts" evidence), second assignment of error (tamper with evidence), third assignment of error (jury instruction), fifth assignment of error (composition of the jury) and sixth assignment of error (manifest weight of the evidence) involve issues which were either raised on direct appeal or should have been raised on direct appeal. Thus, the doctrine of res judicata prevents this court from reviewing the appellant's first, second, third, fifth and sixth assignments of error. This court is also prohibited from addressing the appellant's fourth assignment of error which deals with a claim of ineffective assistance of -6- counsel. The appellant failed to raise the claim of ineffective assistance of counsel on direct appeal and also failed to overcome the presumption of effective assistance of counsel with operative facts dehors the record. State v. Warden (1986), 33 Ohio App.3d 87. Therefore, this court need only address the appellant's seventh assignment of error. III. THE SEVENTH ASSIGNMENT OF ERROR The appellant's seventh assignment of error is that: THE LOWER COURT ERRED BY NOT ALLOWING AN EVIDENTIARY HEARING WHEN APPELLANT PRESENTED DOCUMENT'S (SIC) AS REQUIRED BY O.R.C. A. ISSUE RAISED: TRIAL COURT ERRED BY FAILING TO CONDUCT AN EVIDENTIARY HEARING WITH REGARD TO PETITION FOR POST- CONVICTION RELIEF The appellant, through his seventh assignment of error, argues that the trial court erred by failing to conduct an evidentiary hearing with regard to the petition for post-conviction relief. Specifically, the appellant argues that the documents attached to his petition for post-conviction relief demonstrated substantive grounds for relief and thus an evidentiary hearing was mandated. The appellant's seventh assignment of error is not well taken. B. REQUIREMENT OF A HEARING WITH REGARD TO A PETITION FOR POST- CONVICTION RELIEF This court, in State v. Ledger (1984), 17 Ohio App.3d 94, held that a trial court does not err by refusing to grant an evidentiary hearing with regard to a petition for post-conviction relief where the petition has raised issues barred by the doctrine of res judicata. -7- The sole issue remaining in this assignment of error is whether appellant was entitled to a hearing on his allegations regarding effective assistance of counsel. Although it is not clear from appellant's petition or his argument on appeal, appellant seems to be suggesting in this assignment that the two lawyers who represented him at trial were ineffective because of their failure to file some unspecified pretrial motion. Appellant also appears to suggest that his petition raises other matters dehors the record. As set forth in the syllabus to Jackson, supra: "In a petition for post-conviction relief, which asserts ineffective assistance of counsel, the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness." See, also, State v. Kapper (1983), 5 Ohio St. 3d 36, and State v. Pankey (1981), 68 Ohio St. 2d 58 [22 O.O.2d 262]. In the instant case, it is apparent that by merely submitting a verified petition, appellant has failed to comply with Jackson, Kapper and Pankey. Moreover, appellant's petition is replete with broad assertions and allegations concerning defense counsel's alleged incompetency. It is also recognized in Jackson at 111-112: "Broad assertions with a further demonstration of prejudice do not warrant a hearing for all post-conviction petitions. General conclusory allegations to the effect that a defendant has been denied effective assistance of counsel are inadequate as a matter of law to impose an evidentiary hearing. See Rivera v. United States (C.A. 9, 1963), 318 F.2d 606. "*** -8- "Post-conviction relief is a remedy sought by a defendant who has been tried to a jury and found guilty beyond a reasonable doubt on each element of the offense charged and who has already gone through the crucible of appeal from that judgment. "Therefore, in the interest of judicial economy and efficiency, it is not unreasonable to require the defendant to show prejudicial factors in his petition for post- conviction relief before a hearing is scheduled. "Furthermore, if we would allow any open- ended allegation or conclusory statement concerning competency of counsel without a further showing of prejudice to the defendant to automatically mandate a hearing, division (D) of R.C. 2953.21 would be effectively negated and useless. R.C. 2953.21(D), which states that 'the prosecuting attorney shall respond by demurrer *** or motion,' would be useless verbiage if, in practice, every petition submitted were granted a hearing regardless of the adequacy of the claim." Further review of the record reveals that appellant was represented by new counsel upon his previous direct appeal to this court. Under that circumstance the Ohio Supreme Court has held in State v. Cole (1982), 2 Ohio St. 3d 112, syllabus: "Where defendant, represented by new counsel upon direct appeal, fails to raise therein the issue of competent trial counsel and said issue could fairly have been determined without resort to evidence dehors the record, res judicata is a proper basis for dismissing defendant's petition for postconviction relief. (State v. Hester, 45 Ohio St. 2d 71 [74 O.O.2d 156], modified.)" State v. Ledger, supra, at 96. (Footnote omitted.) C. THE APPELLANT WAS NOT ENTITLED TO AN EVIDENTIARY HEARING In the present appeal, the appellant raised six claims which were barred by the application of the doctrine of res judicata. -9- Additionally, the appellant failed to submit any evidentiary documents which contained sufficient operative facts to demonstrate a lack of competent counsel. State v. Jackson, supra, at 111. The application of the doctrine of res judicata and the failure of the appellant to submit evidentiary documents to demonstrate a claim of ineffective assistance of counsel supported the trial court's judgment which culminated in the dismissal of the appellant's petition for post-conviction relief without the benefit of an evidentiary hearing. Such an evidentiary hearing was not mandated. Thus, the appellant's seventh assignment of error is not well taken and the judgment of the trial court, which dismissed the appellant's petition for post-conviction relief, is granted. Judgment affirmed. -10- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN F. CORRIGAN, J. and SPELLACY, J., CONCUR. DAVID T. MATIA CHIEF JUSTICE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .