COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70120 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOSEPH P. MARTINELLI : : Defendant-appellant : : DATE OF ANNOUNCEMENT : DECEMBER 5, 1996 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CR-167754 (Post-conviction) JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. JOSEPH P. MARTINELLI, PRO SE Cuyahoga County Prosecutor #173-988 KAREN L. JOHNSON, ESQ. Ross Correctional Institute Assistant County Prosecutor P.O. Box 7010 8th Floor, Justice Center Chillicothe, OH 45601 1200 Ontario Street Cleveland, OH 44113 - 2 - PATTON, J. Over a fifteen year period, petitioner Joseph Martinelli has repeatedly filed appeals, motions for postconviction relief, petitions for habeas corpus, motions for delayed reconsideration of his appeal, and other miscellaneous motions all seeking reversal of his murder conviction. With one exception, the thirteen grounds for relief stated in the petition currently before us have been previously addressed and denied by judicial fora. We affirmed petitioner's murder conviction on direct appeal in State v. Martinelli (Mar. 17, 1983), Cuyahoga App. No. 45148, unreported. The Ohio Supreme Court denied further review. At that point, petitioner began acting pro se and sought leave to file a delayed appeal, but we denied the motion as moot since we had previously heard his appeal on the merits. In May 1986, petitioner filed his first petition for postconviction relief. That petition set forth as grounds for relief the existence of perjured testimony, prosecutorial misconduct, and ineffective assistance of trial and appellate counsel. His chief argument concerned the testimony of one witness for the state who recanted her testimony that petitioner shot the victim. The trial court dismissed the petition without a hearing, and we affirmed. See State v. Martinelli (Nov.12, 1987), Cuyahoga App. No. 53010, unreported. Petitioner then asked the trial court to correct the transcript nunc pro tunc by incorporating untranscribed parts of - 3 - the transcript into the record and to correct certain portions of the transcript that were "misstated, altered or omitted." Petitioner maintained the transcript should be amended to reflect the recanted testimony he relied upon in his first petition for postconviction relief. After several false starts (for example, filing a premature notice of appeal), petitioner filed in this court a complaint in mandamus. The complaint in mandamus sought a writ ordering the trial court to issue findings of fact and conclusions of law on his motion to sua sponte correct the transcript. Shortly thereafter, petitioner voluntarily withdrew his motion to correct the transcript, but proceeded with the mandamus complaint. Moreover, he filed a petition for a writ of habeas corpus ad testificandum which also sought to correct the record. At about the same time, petitioner began filing various complaints in both this court and the supreme court seeking to compel the state to permit him access to the police murder investigation records of his criminal case. Additionally, he filed a motion to "have the record and evidence preserved" in the trial court. He bluntly informed the trial court that once he received his public records request, he intended to file numerous motions and pleadings in virtually every court having some form of jurisdiction over his criminal case: "After exhaustion of said litigation, Petitioner intends to litigate in this Court pursuant to Civ.R. 60(A), a motion to have the trial transcripts, and possibly other evidence, - 4 - pertinent to the above captioned case correct to conform to the truth with an entry of order nunc pro tunc. "After completely exhausting litigation to have the record corrected, Petitioner intends to litigate in the appropriate courts contesting a denial of due process of law on Petitioner's direct appeal, case no. 45148 in the Court of Appeals, requesting that his first appeal of right be reinstated or that he be permitted to pursue a new first appeal as of right. "Upon exhaustion of seeking a new appeal in the State courts, Petitioner will seek habeas corpus relief in the federal courts, and appeals to higher federal courts if not granted favorable decisions. "Moreover, possibly Petitioner will seek litigation in this Court if certain records are disclosed to him in his public record litigation in the Court of Appeals. If newly discovered evidence is disclosed to Petitioner he can seek a new post conviction relief petition pursuant to O.R.C. 2953.23, or other collateral remedies in this Court contesting his conviction." Although the trial court denied the motion to preserve the evidence, petitioner remained true to his word. He filed another motion to correct the record, again claiming portions of a supplemental transcript ordered by this court in Case No. 53010 had been misstated, altered or omitted. That motion conveniently ignored the fact that we twice overruled identical motions by petitioner in that same case and that the trial court overruled another identical motion in 1988. In State ex rel. Martinelli v. Cleveland (Apr. 22, 1991), Cuyahoga App. No. 56461, unreported, affirmed (1992), 61 Ohio St.3d - 5 - 1425, we partially granted petitioner's public records request and ordered release of various records consisting primarily of witness statements. We expressly declined to order release of the coroner's report and autopsy protocol (as well as forensic reports) on grounds that principles of res judicata and collateral estoppel precluded disclosure. Petitioner used the fruits of his public records request as a basis for more filings. Among them were a motion to correct the record, a motion to reconsider the denial of this 1986 petition for postconviction relief, a motion for a new trial, a motion to vacate the denial of the 1986 petition for postconviction relief and a motion for appointment of counsel. All those motions were denied. We then heard and denied petitioner's application to reopen his appeal. See State v. Martinelli (Nov.12, 1987), Cuyahoga App. No. 53010, unreported, reopening disallowed, (Dec. 20, 1993), Motion No. 40077, unreported. That motion set forth fifteen claims of ineffective appellate counsel, many of which raised issues related to his prior motions to correct the record. In closing remarks, we stated the numerous assignments of error filed "failed to raise a meaningful challenge to the propriety of the judgment of conviction and sentence entered against [petitioner]" and concluded "[t]he kind of scatter-shot use of the Murnahan procedure which is in evidence in this case borders on abuse." - 6 - Concurrent with all the above filings, petitioner filed his second petition for postconviction relief. The petition set forth the following claims for relief: 1. The trial court improperly discharged retained trial counsel by prohibiting counsel from prosecuting petitioner's direct appeal. 2. The trial court improperly failed to address petitioner personally at the time of sentencing. 3. The record does not conform to the truth. 4. State witnesses committed perjury. 5. The trial court improperly limited cross-examination of prosecution witness Grenon. 6. The trial court gave an improper jury instruction on self- defense. 7. The media were wrongfully excluded from the trial. 8. Prosecutorial misconduct in suborning perjury of state witnesses. 9. Insufficient evidence based on newly discovered forensic evidence of powder burns on the victim. 10. Ineffective assistance of trial counsel for withdrawing a motion to suppress evidence, failure to file for discovery, failure to request a charge on the lesser included offense of voluntary manslaughter. 11. Cumulative error. 12. The parole board has wrongfully denied petitioner's release from incarceration. 13. Witness affidavits constitute newly discovered evidence sufficient to warrant a new trial. The trial court granted the state's motion to dismiss the claims without a hearing. In findings of fact and conclusions of law the trial court found claims 1-11 and 13 failed to present substantive grounds for relief. The trial court further found claim 12 was not cognizable in a petition for postconviction relief. We state this procedural history to make two points. First, this is a second or successor petition for postconviction relief. Second, all of the claims presented in the second petition have - 7 - been or could have been raised either on direct appeal or in the initial petition for postconviction relief. In State v. Apanovitch (1995), 107 Ohio App.3d 82, 87, we held that former R.C. 2953.23(A), the postconviction relief statute in effect at the time this petition had been filed, permits but does not require the trial court to entertain a second or successive petition for similar relief based upon the same facts or on newly discovered evidence. R.C. 2953.23(A) has since been amended to forbid courts from entertaining second or successive petitions for postconviction relief unless the petitioner shows both that he was unavoidably prevented from discovering the facts upon which the petition relies to present the claim for relief and that the petitioner shows by clear and convincing evidence that, but for the constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted. That the trial court did not have to grant a hearing, much less any form of substantive review is borne out by our decision in Apanovitch and, in fact, is now codified in the amendments to R.C. 2953.23. We set forth in some detail the numerous filings made by petitioner in order to demonstrate his repeated attempts to have the same issue heard time and again. Some of these attempts go back nearly ten years. For example, petitioner's numerous attempts to correct the record have been consistently denied by this court - 8 - since 1987. At least four different motions or complaints have been filed with the courts, all asserting the exact same argument and proof. All have been denied for the same reasons. Likewise, virtually all the grounds presented in this second petition for postconviction relief have been previously addressed. For example, in State v. Martinelli, supra, reopening disallowed (Dec. 20, 1993), Motion No. 40077, we considered petitioner's application for delayed reconsideration of his appeal. Our opinion in that case discusses and rejects arguments that mirror those presented in the petition now before us. Our point with this discussion is that principles of res judicata do apply in the case. All but one of the issues raised in the second petition for postconviction relief have been addressed previously by this court either through the denial of various motions to correct the record or the application for reopening. Those prior rulings are binding. State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus. We recently stated that a petitioner does not have carte blanche to file successive petitions endlessly, even if those petitions are supported by new evidence. See State v. Williams (Jan. 18, 1996), Cuyahoga App. No. 68613, unreported. Having previously ruled upon all but one of his claims, principles of res judicata apply and preclude further consideration of those claims, regardless whether they were presented in a prior petition for postconviction relief or through some other legal challenge. - 9 - Apanovitch, supra (postconviction claims previously adjudicated in federal habeas proceeding barred by res judicata); cf. State v. Richardson (1996), 74 Ohio St.3d 235 (no injustice in applying principles of res judicata to successor application for reopening). So far, petitioner has enjoyed a free hand to raise the same hoary arguments, ignoring our every single judicial determination. Postconviction proceedings are civil in nature and, like any other civil litigant, petitioner must exercise his right to access to the courts responsibly. We see no reason why the trial court should be reluctant to sanction petitioner as it would any other litigant. In our view, filing the same claims time and again constitutes an abuse of the legal system and is intolerable. See State ex rel. Richardson v. Cuyahoga Cty. Bd. of Commrs. (1995), 100 Ohio App.3d 592, 600. To this end, we urge the trial court to exercise its discretion first to dismiss summarily any petition or related motion that again raises the same claims presented herein. Second, in the event it finds a subsequent motion or petition has been filed that raises the same substantive arguments, we urge the trial court to consider imposing appropriate sanctions. The only new issue raised in the second petition is the twelfth claim for relief and deals with the prison authority's refusal to parole petitioner despite the fact he has earned good time credit for his sentence. He claims the prison authority has - 10 - discriminated against him because of his race and its perception that he has gone too far in contesting his conviction. Postconviction proceedings may be used to void a conviction only if the court can find that there was a denial or infringement of the rights of the person under the state and federal constitutions. State v. Perry, supra, at paragraph four of the syllabus. A convicted person has no constitutional right to be conditionally released prior to the expiration of a valid sentence. Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex (1979), 442 U.S. 1, 7. Because R.C. 2967.03 makes the parole decision discretionary, petitioner is not deprived of any due process right or liberty interest with respect to the parole determination. See State ex rel. Hattie v. Goldhardt (1994), 69 Ohio St.3d 123, 125-126. Accordingly, we find the trial court did not err by dismissing the twelfth claim for relief for failure to state a cognizable postconviction claim. The assigned errors are overruled. Judgment affirmed. - 11 - 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 Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J. KARPINSKI, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .