COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68743 STATE OF OHIO : : ACCELERATED Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION FLOYD J. HULL : : PER CURIAM Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 14, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-198918 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. FLOYD J. HULL, PRO SE Cuyahoga County Prosecutor Grafton Correctional Inst. KAREN L. JOHNSON, ESQ. 2500 South Avon-Belden Rd. 1200 Ontario Street Grafton, Ohio 44044 Cleveland, Ohio 44113 PER CURIAM: Appellant filed a second petition for post-conviction relief, pursuant to this Court's recommendation in State v. Hull (Aug. 11, 1994), Cuyahoga App. No. 51853, unreported, with the Court of Common Pleas on January 6, 1995. The trial court dismissed appellant's petition without a hearing. Appellant asserts one assignment of error. I THE TRIAL COURT ERRED IN DENYING APPELLANT AN EVIDENTIARY HEARING, PURSUANT TO R.C. 2953.21, IN THAT APPELLANT PRODUCED SUBSTANTIAL EVIDENCE THAT TRIAL COUNSEL FAILED TO EFFECTIVELY OBJECT TO THE STATE'S USE OF PEREMPTORY CHALLENGES TO EXCLUDE AFRICAN-AMERICAN JURORS, AND, THEREFORE, RENDERED TRIAL COUNSEL INEFFECTIVE. Appellant argues that he was entitled to an evidentiary hearing due to his reliance upon evidence outside the record to support the material issue of the excused jurors' race. We are not persuaded by appellant's argument. Appellant filed a petition for post-conviction relief on April 19, 1989. Attached to this petition was a transcript of the voir dire which appellant claims was constitutionally violative of his right to a fair trial. Also attached were the affidavits of three women who affirmed that they were black jurors during appellant's trial voir dire and were subsequently excused by the prosecutor. Also attached were four other affidavits from witnesses to the juror dismissals during appellant's trial. Finally, a letter from - 3 - appellant's trial counsel was included claiming that he objected to the exclusion at voir dire of the black jurors. That first petition was dismissed without an evidentiary hearing by the trial court on June 27, 1989. This Court reviewed appellant's appeal from that dismissal in State v. Floyd J. Hull (Feb. 26, 1990), Cuyahoga App. No. 58024, unreported. We found that appellant's assignment of error alleging incompetency on the part of the trial counsel for failure to object to the composition of the jury could have been raised on direct appeal without resort to evidence outside of the record. This Court further found that the argument raising as error the prosecution's use of peremptory challenges was properly dismissed as res judicata, having previously been reviewed on direct appeal. Appellant subsequently filed a motion for delayed reconsideration under State v. Murnahan (1992), 63 Ohio St.3d 60. This Court granted the motion and upon review found that ineffective assistance of appellate counsel had not occurred. Specifically, we held that: [T]he ruling in Batson [v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69] was not announced until four months after voir dire at appellant's trial. In light of the timing of the Batson and Griffith [v. Kentucky (1987), 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649, (finding Batson to be retroactive to all cases pending on appeal)] decisions, we cannot conclude that appellate counsel was ineffective for failing to contest the performance or nonperformance of trial counsel during voir dire. Trial counsel would not be deemed ineffective for failing to anticipate the ruling in Batson. State v. Smith (1991), 72 Ohio App.3d 342, 594 N.E.2d 688. - 4 - State v. Floyd J. Hull (Aug. 11, 1994), Cuyahoga App. No. 51853, unreported, p. 9. This Court then proceeded to recommend that appellant refile a motion for post-conviction relief on the issue because the Batson violation can only be demonstrated with evidence outside of the record. On January 6, 1995 appellant refiled the instant petition for post-conviction relief. Attached to this motion are the same affidavits which accompanied his first petition for post- conviction relief in addition to several other affidavits. The first affidavit from appellant's first appellate counsel contained the statement that he was told by trial counsel that all black jurors had been removed. Two other affiants claimed that they were present during the trial and overheard one of the dismissed jurors complaining of the unfairness of the trial. Appellant also submitted an affidavit. The trial court dismissed appellant's petition without a hearing, finding that: The affidavits attached to the Defendant- Petitioner's brief are hearsay statements and as such are inadmissible... Furthermore, there is no objective evidence that trial counsel was aware of the possibility of Batson at the time of trial. (Trial court's findings of facts and conclusions of law, March 6, 1995). On appeal from this dismissal, we are constrained to find that appellant was not entitled to an evidentiary hearing on his petition. After a thorough review of the lengthy procedural history of this case, we find that facts within the record clearly - 5 - negate appellant's alleged contentions of ineffective assistance of trial counsel. The Franklin County Court of Appeals has held that a peti- tioner is entitled to an evidentiary hearing "absent showing by state of facts in the record negating contentions alleged with particularity in verified petition and memorandum." State v. Gibson (1992), 78 Ohio App.3d 501, paragraph two of the syllabus. The issue of whether appellant was denied effective assistance of counsel because of his attorney's failure to object to the racial composition of the jury was raised on direct appeal (without a transcript of the voir dire); on the first petition for post- conviction relief (found to be res judicata because it was raised on direct appeal); on the motion for delayed reconsideration (no ineffective assistance of appellate counsel); and finally, on this second petition for post-conviction relief. We hereby find that appellant's claim is without merit due to the timing of the Batson decision. Trial counsel was under no duty to anticipate the Supreme Court ruling and therefore did not violate any affirmative duty owed to appellant by his failure to object to the prosecution's use of peremptory challenges. The procedural history of the case contained in the record is suffi- cient to negate the allegations raised by appellant's affidavits. Furthermore, appellant's affidavits alleging that a juror was overheard complaining of unfairness at trial and that appellate counsel was told by trial counsel that all black jurors had been - 6 - dismissed by the prosecution are blatant hearsay statements. The trial court properly ruled these affidavits to be inadmissible. Therefore, the allegations in appellant's second petition for post- conviction relief were insufficiently verified. Appellant's assignment of error is overruled. The trial court's dismissal of his petition for post-conviction relief without a hearing is affirmed. - 7 - 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. __________________________________ DAVID T. MATIA, PRESIDING JUDGE __________________________________ ANN DYKE, JUDGE __________________________________ DIANE KARPINSKI, JUDGE CONCURS WITH ATTACHED CONCURRING OPINION 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68743 : STATE OF OHIO : : : Plaintiff-Appellee : : CONCURRING -vs- : : OPINION FLOYD J. HULL : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 14, 1995 KARPINSKI, J., CONCURRING: I concur in the judgment of the majority. This appeal is the most recent in an interminable series of litigation involving the same issue with different spins. The matter has been greatly complicated by defendant's repeated failure, throughout the proceedings and now, to file a complete record to support his claims. The record before us, however, in addition to the case law left in the wake of this case reveals that defendant is not entitled to relief. On four separate occasions, defendant has challenged the peremptory exclusion of jurors: (1) on direct - 2 - appeal, (2) in his first petition for post conviction relief ("Petition for PCR"), (3) in delayed reconsideration on direct appeal, and (4) in his second Petition for PCR. Defendant's first Petition for PCR should have presented all the claims and materials supporting his second Petition for PCR. Defendant's failure to raise these claims, based on known facts occurring prior to filing his first Petition for PCR, warrants denying this second Petition for PCR. .