COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72042 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION DONALD WILLIAMS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JANUARY 8, 1998 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CR-190615 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. TIMOTHY F. SWEENEY, ESQ. Cuyahoga County Prosecutor The 820 Building CHRISTOPHER L. FREY, ESQ. Suite 540 Assistant County Prosecutor 820 Superior Avenue, N.W. 8th Floor Justice Center Cleveland, Ohio 44113-1800 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, P.J.: Donald Williams, defendant-appellant, appeals the decision of the trial court denying his first successor petition to vacate or set aside judgment and/or sentence. Williams assigns the following four errors for our review: I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING MR. WILLIAMS' MOTION TO CONDUCT DISCOVERY. II. THE TRIAL COURT ERRED WHEN TI DISMISSED MR. WILLIAMS' BRADY CLAIMS AS BEING WITHOUT MERIT. III. THE TRIAL COURT ERRED IN REJECTING MR. WILLIAMS' CLAIM REGARDING THE BIAS AND PREJUDICE OF JUDGE COLEMAN. IV. THE TRIAL COURT ERRED IN DISPOSING OF MR. WILLIAMS' REMAINING CLAIMS. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Williams was convicted of aggravated murder with a for hire specification. He was sentenced to death on August 16, 1984. His conviction and sentence were affirmed on appeal to this court in State v. Williams (Feb. 13, 1986), Cuyahoga App. No. 49185, unreported. The Supreme Court of Ohio affirmed the appellate decision in State v. Williams (1988), 38 Ohio St.3d 346 on September 14, 1988. The United States Supreme Court denied certiorarion February 21, 1989. Williams v. Ohio (1989), 489 U.S. 1040. Pursuant to R.C. 2953.21, Williams filed a Petition to Vacate or Set Aside Judgment and/or Sentence. On May 3, 1990, he filed an amended Petition which contained forty-five claims for relief. The -3- State filed a motion to dismiss the Petition. On July 7, 1992, the Court of Common Pleas entered its findings of fact and conclusion of law, denying Williams' petition. Williams appealed the trial court's decision on August 3, 1992. This court affirmed the trial court's denial in State v. Williams (Nov. 24, 1993), Cuyahoga App. No. 64151, unreported. On April 22, 1993, Williams filed his first successor Petition to Vacate or Set Aside Judgment and/or Sentence. In this petition, Williams stated fourteen claims for relief. The trial court determined that claims 2,3,5,7,13, and 14 were barred under the doctrine of res judicata, as they were raised or could have been raised on direct appeal; claim 10 was likewise barred as it was raised in the first petition; and claims 1,4,6,8,9,11 and 12 lack merit. The court held there were no substantive grounds for relief presented and denied the petition. After filing his first successor petition, Williams moved for an order to conduct discovery to support said petition on July 28, 1994. On January 6, 1997, the court denied the motion. This appeal follows. In his first assignment of error, Williams argues the trial court abused its discretion in denying his request to conduct discovery. Williams argues it was necessary for him to conduct discovery because he needed to obtain documents and other evidentiary material to be entitled to an evidentiary hearing. To support his argument, Williams argues that the overwhelming case law supports his position that discovery is necessary to develop -4- evidence to support a petitioner's claims. Generally, we agree, but not in this case. In considering the opportunity to conduct discovery in a petition for post conviction relief, this court has *** explained that a petitioner who has availed himself of a public record request has received adequate discovery. State v. Johnson (Aug. 26, 1996), Cuyahoga App.Nos. 69547 & 70173, unreported (appeal to Ohio Supreme Court dismissed), citing State v. Apanovitch (1995), 107 Ohio App.3d 82, 97. Williams had previously availed himself of a public record request pursuant to R.C. 149.43. Thus, he was not entitled to further discovery. Consequently, the trial court correctly denied his motion for discovery. Furthermore, Williams had ample opportunity to conduct discovery. He filed his petition and motion in 1994. The trial court did not rule on either until 1997. Williams had three years to retrieve the documents he claims was necessary. It has been held that petitioners should be given reasonable time and opportunity to conduct discovery to support their claims. State v. Ostot(July 7, 1989), Clark App. No. 2500, unreported. It is this court's opinion that three years is more than reasonable. Williams' first assignment of error is overruled. In his second assignment of error, Williams challenges the trial court's decision that the Brady claims in his petition lack merit. Williams asserts that the state withheld exculpatory evidence because the documents he has secured, post trial, point to more exculpatory evidence in the State's possession. Williams -5- bases this argument on the affidavit of Tom Shaugnessy, Williams' trial attorney. In his affidavit, Shaughnessy states forty-nine exhibited documents were not provided to him during the course of his representation. Williams maintains that Shaughnessy's affidavit and the documents he has received are material issues of fact that show the trial court's decision was erroneous. The prosecution is required to provide the accused with exculpatory evidence in its possession. Brady v. Maryland (1963), 373 U.S. 83; 83 S.Ct. 1194. In United States v. Bagley (1985), 473 U.S. 66; 105 S.Ct. 3375, the Supreme Court extended Brady by including impeachment evidence as evidence favorable to the defendant. The court held [evidence is favorable to the defendant] if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id. at 682. We conclude the trial court was correct in its determination that the attached exhibits were not exculpatory, thus Williams' Brady claims were meritless. First, Williams relies on Shaughnessy's affidavit stating the state did not disclose to him a portion of the exhibits attached to the petition. It does not matter that Shaughnessy was not privy to those documents, if they are not exculpatory. Secondly, the exhibits at issue were obtained from the FBI and the Cleveland Police Department. They consist of police reports, investigative interviews, depositions, etc. The content of these documents does not reveal how, if at all, the result of the trial would have been different, had the state -6- provided them to Williams. Williams' second assignment of error is overruled. In his third assignment of error, Williams asserts the trial court erred in barring his claim on the basis of res judicata. In his petition, Williams claimed that Judge Coleman, the trial judge, was biased and prejudiced. Williams argues that although this was also a claim in his first petition for post-conviction relief, he now has evidence dehors the record to support this claim. It is within a court's discretion to entertain claims raised in a previous petition. R.C. 2953.23(A); see also State v. Walker (1995), 102 Ohio App.3d 625. This means a court may bar any claim under the doctrine of resjudicata if it applies. Apanovitch at 89. Even if the similar, successor claim is coupled with newly discovered evidence, res judicata may be applied. Id. Williams raised this claim regarding Judge Coleman in his direct appeal and on his first petition for relief. This time he contends he has new evidence to support his claim, but he does not state what that evidence is. It is our opinion that the trial court did not abuse its discretion when it barred Williams' claim based on res judicata. Accordingly, Williams' third assignment of error is overruled. In his fourth assignment of error, Williams argues the court erroneously applied res judicata to his other claims. He argues his claims raise a constitutional violation which would render his conviction or sentence void or voidable. He also argues he could -7- not have raised ineffective assistance of counsel on appeal because his trial and appellate counsel were the same. Res judicata was properly applied to Williams' other claims. Res judicata is applicable where an issue was raised or could have been raised on appeal. State v. Perry (1967), 10 Ohio St.2d 175, 180. Williams raised this issue on his appeal to the Ohio Supreme Court, as he had different representation. See State v. Williams (1988), 38 Ohio St.3d 346, 355, ( appellant's eleventh, seventeenth, and twentieth propositions of law concern his contentions that he was denied effective assistance of counsel at the guilt and mitigation phases of his trial, and also at the appellate level. ). The Supreme Court held Williams received the assistance of counsel to which he was entitled. Id. Since this was brought before the Supreme Court and subsequently dismissed by that Court, res judicata was properly applied. 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. SPELLACY, J., and ROCCO, 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 .