COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71912 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION EUGENE WOODARD : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JANUARY 22, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CR-254478 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES, ESQ. MICHAEL J. BENZA, ESQ. Cuyahoga County Prosecutor DAVID H. BODIKER, ESQ. L. CHRISTOPHER FREY, ESQ. RICHARD J. VICKERS, ESQ. Assistant County Prosecutor Assistant State Public 8th Floor Justice Center Defenders; OH Public Defender 1200 Ontario Street Comm.; 8 E. Long St., 11th Fl Cleveland, Ohio 44113 Columbus, Ohio 43266-0587 -2- PATRICIA ANN BLACKMON, P.J.: Eugene Woodard, defendant-appellant, appeals the trial court's denial of his post-conviction petition. Woodard assigns eleven errors for our review.1 Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. A jury convicted Woodard of killing Mani Akram during a robbery of Akram's car and recommended that he receive the death penalty. The trial court agreed and sentenced Woodard accordingly. At the trial, John Gardner and Gary Andrachik represented Woodard. Woodard, thereafter, appealed and John Gardner and David Doughten represented him. This court affirmed Woodard's conviction and death sentence in State v. Woodard (April 23, 1992), Cuyahoga App. No. 61171, unreported. Thereafter David Doughten and Robert Ingersoll appealed Woodard's case to the Ohio Supreme Court wherein that court affirmed his conviction and death sentence in State v. Woodard (1993), 68 Ohio St.3d 70. During both appeals and among other issues, Woodard raised the ineffective assistance of his trial counsels. Specifically, he argued his lawyers failed to object to improper jury instructions during the guilt phase, failed to object to the trial court's definition of reasonable doubt in the mitigation phase, and failed to request a residual doubt instruction. Both the Court of Appeals and the Ohio Supreme Court 1 See Appendix. -3- rejected the arguments under the standards set forth in Strickland v. Washington (1984), 466 U.S. 668. On February 21, 1995, Woodard filed a Petition to Vacate of Set Aside Judgment and/or Sentence under R.C. 2953.21. The petition set forth forty-six claims for relief. Woodard's petition contained an affidavit from his mother and sister that mirrored their trial testimony. Also, there was an affidavit from his father, Leo Clayton, who was not called as a witness during the trial. Clayton's affidavit painted a story of Woodard's childhood that showed Clayton's influence over his son at an early age. Clayton's influence was by all accounts of humanity reprehensible. He claimed he taught Woodard to have a life as a criminal. He used Woodard at an early age to carry drugs interstate. The state filed a motion to dismiss the petition. In its review of Woodard's petition, the trial court divided the claims into several groups. Claims 1 through 17, 20, 23, 24, 26, 28, 29, 30, 37 through 41, and 43 through 46 were held to be barred by res judicata. Claims 19, 21, 22, 25, 27, 31, 32, 34, 35, and 36 were determined to involve evidence dehors the record but were found to lack evidentiary support. The court decided that Claims 18 and 42, which attacked the appellate process, were outside the scope of post-conviction relief proceedings. The remaining claims, which attacked the constitutionality of the death penalty, were found to be meritless pursuant to State v. Davis (1992), 63 Ohio St.3d 44 -4- which upheld Ohio's death penalty scheme. The trial court dismissed Woodard's petition. Before we address Woodard's assigned errors we believe it important to review Woodard's overall argument concerning the vehicle used by the trial court to dispose of his petition. The State of Ohio titled its dismissal request as a Motion to Dismiss and Motion for Summary Judgment. The trial court entered judgment and stated it dismissed the petition under the post-conviction relief statute. The post-conviction relief statute calls for and mandates dismissal under summary judgment for obvious reasons. See State v. Lawson (1995), 103 Ohio App.3d 307. However, Woodard attempts to turn the state's motion into an impermissible 12(b)(6) motion. It is no doubt that a 12(b)(6) motion is an inappropriate way to dispose of a post-conviction petition under R.C. 2953.21. R.C. 2953.21 requires the court to look beyond the petition. Consequently, Civ.R. 12(B) would be an inappropriate vehicle to accomplish that mandate. See State v. Franklin (Jan. 25, 1995), Hamilton App. No. C-930760, unreported. Consequently, we are confident that the trial court issued its ruling under the dictates of the post-conviction statute which calls for dismissals pursuant to summary judgment. Simply because Woodard seeks to make this a 12(b) dismissal does not render it one. We also address assignment of error two first because Woodard based his oral argument on that particular assignment of error. -5- This is not to say that he waived the others. They will be reviewed in the order that they were briefed. In assignment of error two, Woodard argues his claim for post- conviction relief for ineffective assistance of counsel at the mitigation phase should have been granted. Woodard argues his lawyers failed to investigate Woodard's psychological, educational and familial background. Specifically, the impact that Leo Clayton had on his son's life of crime. The failure to investigate and present evidence at the mitigation phase could have been raised on direct appeal and is barred by res judicata. See State v. Cole (1982), 2 Ohio St.3d 112. 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. State v. Szefcyk (1996), 77 Ohio St.3d 93, 95 [quoting State v. Perry (1967), 10 Ohio St.2d 175, at paragraph nine of the syllabus.] Accordingly, we apply the same reasoning to Woodard's first, fifth, sixth, and eighth assignments of error. However, Woodard argues that res judicata was inapplicable to his ineffective assistance of counsel claims. He argues he was precluded from fully raising his ineffective assistance of counsel -6- claims on direct appeal because he was represented on appeal by one of the same attorneys who represented him at trial. We disagree. While it is true that one of Woodard's trial attorneys worked on his first appeal to this court, he was also represented by a second attorney who was not involved with his trial. Our review of his direct appeal reveals that he did, in fact, raise the issue of ineffectiveness of counsel and that his claim was rejected. He also unsuccessfully raised the issue of ineffectiveness of counsel in his appeal to the Supreme Court, when he was represented by two attorneys who were not involved with his trial. Because Woodard's claims of ineffective assistance of counsel were raised and fully litigated on direct appeal, those claims are barred by res judicata. .2 Woodard also argues res judicata does not apply to his ineffective assistance of counsel claims because they were based on evidence dehors the record. See State v. Combs (1994), 100 Ohio App.3d 90, 97. Woodard attached various exhibits to his petition for post-conviction relief, including several affidavits. However, even if we accept the affidavits and other evidence as true, Woodard has not shown how any of the exhibits are relevant to his claim of ineffective assistance of counsel. To substantiate a claim that counsel's performance was ineffective, a defendant must submit evidentiary documents containing sufficient operative facts to demonstrate a substantial violation of an essential duty by 2Woodard's eighteenth claim for relief raises the issue of ineffective assistance of appellate counsel. Pursuant to State v. Murnahan (1992), 63 Ohio St.3d 60, such claims are not cognizable in PCR petitions. -7- counsel and that the defense was prejudiced by counsel's performance. State v. Powell (1993), 90 Ohio App.3d 260, 270 [citing State v. Bradley (1989), 42 Ohio St.3d 136.] Evidence outside the record by itself, however, will not guarantee a right to an evidentiary hearing. To overcome the res judicata bar, the evidence must show that the petitioner could not have appealed the constitutional claim based on the information in the original trial record. State v. Combs (1994), 100 Ohio App.3d 90, 97. Absent any evidence that any evidence outside the record was necessary to determine Woodard's ineffective assistance of counsel claims, the trial court correctly dismissed the claims on the basis of res judicata. With respect to the other claims dismissed on the basis of res judicata, all involved issues which were or could have been raised on direct appeal. Though Woodard argues that additional discovery is needed to uncover factual material supporting his allegations, he has made no showing of how the consideration of evidence dehors the record would support his claims. The trial court properly dismissed those claims on the basis of res judicata. Accordingly, we overrule Woodard's first, second, fifth, sixth, and eighth assignments of error. In his third assignment of error, Woodard argues the State violated its duty to produce exculpatory evidence to the defense. Woodard attached a copy of a letter written to him by one of his co-defendants, Gary Hill. In his brief before this court, Woodard argues statements made by Hill in the letter contradict his trial -8- testimony. We disagree. In the letter dated September 9, 1994, Hill wrote: ***I've been thinking on how to work this case and I came up with a few ideas and they can get us out of prison, but it's gonna sound selfish on my behalf, but it may help us out of this jam, now if we do it we'll have to consider the fact that John & Curt have to be told of what we're up to, fore (sic) it to work. The letter continues with Hill outlining his plan to get out of prison by attempting to recant his trial testimony by telling police he was asleep in the car at the time of the shooting because he was smoking PCP and that the only reason he testified to seeing Woodard shoot the victim was because he was afraid the victim's father would kill him if he told the truth. A review of the letter makes clear that the story contained in the letter was concocted by Hill, more than three years after he testified at Woodard's trial, in an effort to secure his release from prison. There is no indication that Hill ever told his story to police or prosecutors. Therefore, the letter does not demonstrate that the state failed to produce any exculpatory evidence. A review of the State's Motion To Dismiss and For Summary Judgment as to Defendant's Motion for Post-Conviction Relief reveals that, contrary to Woodard's assertions in his appellate brief, the state did not admit to withholding evidence from the defense. The state stated only that Brady v. Maryland (1963), 373 U.S. 83 does not confer upon Woodard an absolute right to all documents in the possession of the prosecution, only those documents containing evidence that is both favorable to the defense -9- and material to the issue of guilt. As discussed above, the Hill letter was not exculpatory to Woodard and Woodard has failed to identify any other allegedly exculpatory documents. Accordingly, the court properly dismissed Woodard's claims that the state withheld exculpatory evidence. We overrule Woodard's third assignment of error. In his fourth assignment of error, Woodard argues the trial court erred in denying him relief on the basis of improper jury instructions. The trial court ruled that res judicata barred the claims. While conceding that the allegedly improper jury instructions are apparent on the record, Woodard argues that evidence dehors the record is necessary to demonstrate the true nature of the impropriety. In support of his claim, Woodard attached the affidavit of Dr. Michael Geis, a professor of linguistics at Ohio State University, who concluded the jury instructions given in Woodard's case were incoherent. Woodard has gone forward with no evidence that the jury in his case was confused by the trial court's instructions. Without any such evidence, Dr. Geis' opinion that the instructions were confusing is speculative at best. See Combs at 107. Accordingly, the trial court properly dismissed Woodard's claims for relief based on improper jury instructions. Woodard's fourth assignment of error is overruled. In his sixth assignment of error, Woodard challenges the trial court's application of res judicata to his claims that the state improperly destroyed evidence and that he was denied the effective assistance of counsel. To the extent that this assignment of error -10- raises the issue of ineffective assistance of counsel, we overrule it in accordance with our conclusion that res judicata prohibits Woodard from raising that issue in his petition for post-conviction relief. In his seventh assignment of error, Woodard argues the trial court erred in denying relief based upon his challenges to Ohio's death penalty proportionality scheme. He claims the unavailability of statistical evidence on the disposition of murder cases rendered it impossible for him to challenge the proportionality review on direct appeal. We disagree. Woodard could have argued on direct appeal that the unavailability of the evidence precluded the trial court from conducting a proper proportionality review. As discussed above, because Woodard has not shown that his arguments could not have been raised on direct appeal, the claims were subject to the application of res judicata. Woodard's seventh assignment of error is overruled. In his ninth assignment of error, Woodard argues the trial court erred in denying his motions to conduct discovery to develop evidence to support his petition for post-conviction relief. The exhibits to Woodard's petition include public records requests submitted to the Cleveland Police Department and the Federal Bureau of Investigation. In State v. Apanovitch (1995), 107 Ohio App.3d 82, 97, the court held that a petitioner [in a post-conviction relief action] who has availed himself of a public records request has received all the discovery he is entitled to receive. Under R.C. 149.43(A)(2)(c), information assembled by law enforcement officials in connection with a probable or pending -11- criminal proceeding need not be released to the public because it is compiled in anticipation of litigation. State ex rel WLWT-TV5 v. Leis (1997), 77 Ohio St.3d 357, 359. See also State ex rel Steckman v. Jackson (1994), 70 Ohio St.3d 420, 432 ( [I]nformation, not subject to discovery pursuant to Crim.R. 16(B), contained in the file of a prosecutor who is prosecuting a criminal matter, is not subject to release as a public record pursuant to R.C. 149.43 and is specifically exempt from release as a trial preparation record in accordance with R.C. 149.43(A)(4). ) Crim.R. 16(B)(2) provides that reports, memoranda, or other internal documents made by the prosecutor in connection with the investigation or prosecution of a case are not subject to disclosure. In his motions for discovery, Woodard sought to inspect the files of the prosecutor and the Cleveland Police Department. To the extent that these files were exempt from discovery under Crim.R. 16, the trial court had no authority to grant Woodard's motion for discovery. As the court held in State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, a petitioner in a post-conviction relief action is not entitled to any discovery beyond that authorized by Crim.R. 16. Woodard's ninth assignment of error is overruled. In his tenth assignment of error, Woodard argues the trial court erroneously applied a sufficiency of the evidence standard in reviewing his petition. In State v. Armstrong (1988), 56 Ohio App.3d 105, 108, the court held that a trial court may summarily dismiss a petition for post-conviction relief when the petition and its supporting documents fail to contain operative facts which, if -12- viewed as true, would entitle the petitioner to relief. See State v. Poland (1984), 16 Ohio App.3d 303 (documents must contain sufficient operative facts to demonstrate the claimed grounds for relief). We find the trial court applied the correct standard in reviewing Woodard's petition and therefore, we overrule his tenth assignment of error. In his eleventh assignment of error, Woodard argues the trial court erroneously dismissed his petition without reviewing the entire record. We reject his argument that the court's duty to review all the files and records pertaining to the proceedings against the petitioner requires the court to review the pleadings from Mr. Woodard's direct appeals to the Court of Appeals and to the Supreme Court. Clearly the appeals were not proceedings against the petitioner. In State v. Lloyd (1966), 8 Ohio App.2d 155, 156, the court held that the files and records referred to in R.C. 2953.21 are those of the original criminal action which is being challenged by the motion to vacate. Contrary to Woodard's assertion, a review of all the appellate pleadings was not necessary to determine which claims were barred by res judicata. A review of the decisions in those cases, when read along with the trial court record would have been enough to enable the trial court to decide if res judicata was applicable to Woodard's claims. In this case, the trial court stated that it considered Woodard's motion for post-conviction relief; the State's motion to dismiss the petition; Woodard's memorandum opposing dismissal; Woodard's amended motion for post-conviction relief; Woodard's -13- Appendix of Exhibits to the petition; the trial transcript; the appearance and execution criminal docket; and the journal entries. We conclude the trial court fulfilled its duty to review the files and records pertaining to the case against Woodard and therefore, we overrule Woodard's eleventh assignment of error. Judgment affirmed. 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. NAHRA, J., and SPELLACY, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE JUDGE 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 clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). ASSIGNMENTS OF ERROR I. THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION TO DISMISS AND FOR SUMMARY JUDGMENT ON THE BASIS OF RES JUDICATA IN VIOLATION OF RULES TWELVE AND FIFTY-SIX OF THE OHIO RULES OF CIVIL PROCEDURE. II. THE TRIAL COURT ERRED IN DISMISSING MR. WOODARD'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE MITIGATION PHASE OF THE TRIAL. III. THE TRIAL COURT ERRED IN DISMISSING THE CLAIMS FOR RELIEF ALLEGING VIOLATIONS OF DISCOVERY UNDER BRADY V. MARYLAND. IV. THE TRIAL COURT ERRED IN DENYING RELIEF ON THE BASIS OF THE IMPROPER JURY INSTRUCTIONS GIVEN IN THIS CASE. V. THE TRIAL COURT INAPPROPRIATELY APPLIED RES JUDICATA TO CLAIMS IN WHICH EVIDENCE DEHORS THE RECORDS EXISTS BUT IS OUTSIDE THE REACH OF MR. WOODARD. VI. THE TRIAL COURT ERRED IN DENYING RELIEF ON THE CHALLENGES TO THE SCIENTIFIC EVIDENCE. VII. THE TRIAL COURT ERRED IN DENYING RELIEF ON MR. WOODARD'S CHALLENGES TO OHIO'S DEATH PENALTY PROPORTIONALITY SCHEME. VIII THE TRIAL COURT ERRED DENYING RELIEF ON ISSUES INCAPABLE OF BEING RAISED ON DIRECT APPEAL DUE TO THE CONTINUING REPRESENTATION OF COUNSEL. IX. THE TRIAL COURT ERRED IN DENYING MR. WOODARD DISCOVERY. X. THE TRIAL COURT ERRED IN APPLYING A SUFFICIENCY OF THE EVIDENCE STANDARD IN REVIEWING MR. WOODARD'S PETITION. XI. THE COURT BELOW ERRED WHEN IT DISMISSED MR. WOODARD'S .