2020 Ohio 3719
Ohio Ct. App.2020Background:
- Richard Barrow was convicted of attempted murder and having a weapon while under disability and sentenced to nine years; prior direct appeal and earlier postconviction relief efforts were unsuccessful.
- In May 2019 Barrow filed a second, untimely and successive petition for postconviction relief relying on a September 17, 2018 affidavit from Cheyenne Burris asserting Barrow was not with her when the shooting occurred and that a "friend" with her struggled over the gun causing an accidental discharge.
- Burris is the mother of Barrow’s child; police reports identified Burris as a witness, multiple trial witnesses testified Barrow arrived with Burris, and Barrow had opportunities to compel her testimony at trial.
- The trial court summarily denied the petition; Barrow appealed arguing the new affidavit demonstrates his innocence and that his due process rights were violated by continued incarceration.
- The court analyzed whether the trial court had jurisdiction to consider an untimely successive petition under R.C. 2953.23(A)(1) (unavoidably prevented discovery + clear-and-convincing showing) and whether Burris’s affidavit met the clear-and-convincing standard to show no reasonable factfinder would convict.
- The court held Barrow failed to show he was unavoidably prevented from discovering Burris’s statement and that Burris’s delayed, self-serving, contradictory affidavit (which does not identify the alleged shooter) did not constitute clear-and-convincing evidence of actual innocence or a cognizable constitutional error; affirmed denial.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court had jurisdiction under R.C. 2953.23(A)(1) to entertain an untimely, successive petition based on being "unavoidably prevented" from discovering Burris's testimony | State: Barrow failed to show unavoidable prevention; Burris was known, listed in police reports, witnesses placed Burris with Barrow, and Barrow could have subpoenaed her | Barrow: Burris was afraid to come forward, so he was unavoidably prevented from discovering her testimony until 2018 | Court: Barrow did not establish unavoidable prevention; trial court lacked jurisdiction to entertain the untimely petition under R.C. 2953.23(A)(1) |
| Whether Burris's affidavit establishes by clear and convincing evidence that no reasonable factfinder would have found Barrow guilty (constitutional/due process claim vs. actual innocence) | State: The affidavit is self‑serving, untimely, contradicts trial testimony, fails to identify the shooter, and does not meet clear-and-convincing threshold; actual innocence is not a freestanding constitutional ground | Barrow: The affidavit is new, exculpatory evidence proving he was not the shooter; he frames it as a due process claim that evidence was insufficient beyond a reasonable doubt | Court: Affidavit insufficient; actual innocence alone is not a constitutional basis for relief and, even if framed as due process, Barrow did not meet the clear-and-convincing standard; denial affirmed |
Key Cases Cited
- State v. Gondor, 860 N.E.2d 77 (Ohio 2006) (standard of review for postconviction relief decisions and abuse-of-discretion context)
- State v. Apanovitch, 121 N.E.3d 351 (Ohio 2018) (timeliness requirement of R.C. 2953.23 is jurisdictional; framework for successive/untimely petitions)
- Herrera v. Collins, 506 U.S. 390 (1993) (actual innocence is not itself a freestanding constitutional claim)