State v. Cunningham
2016 Ohio 3106
Ohio Ct. App.2016Background
- Jeronique Cunningham was convicted and sentenced to death; his convictions and sentence were affirmed on direct appeal and earlier postconviction proceedings.
- After federal habeas proceedings, the Sixth Circuit identified an unexhausted juror-bias claim based on evidence that the jury foreperson (Juror No. 21, Nichole Mikesell) had a relationship with the victims’ families and remanded for potential state-court exhaustion.
- Following the Sixth Circuit remand and a stay in federal court, Cunningham filed a December 18, 2014 second petition for postconviction relief, a motion for leave to file a delayed Crim.R. 33 new-trial motion, and a motion for funds for an investigator. His claim rested on juror bias by Mikesell supported by earlier investigator affidavits and juror depositions.
- The State moved to dismiss; the trial court dismissed/overruled Cunningham’s postconviction petition and denied leave for a delayed new-trial motion and denied funds for an investigator. Cunningham appealed.
- The trial court (and the appellate court) held that the December 2014 filing was a second/untimely petition subject to R.C. 2953.23 and that Cunningham failed to satisfy the statutory exceptions (unavoidably prevented or new retroactive right). The court also held Cunningham failed to show he was unavoidably prevented from discovering the allegedly new juror-bias evidence within Crim.R. 33(B)’s 120-day limit, and that no statutory or constitutional right entitled him to funding for an investigator in these proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Dec. 18, 2014 petition is a first timely postconviction petition or a second/untimely petition subject to R.C. 2953.23 | The State: the petition is successive/untimely and subject to statutory limits | Cunningham: treat it as a timely first petition because prior state process failed to provide adequate relief; alternatively, he meets R.C. 2953.23 exceptions | The court held it was a second/untimely petition; Cunningham did not meet R.C. 2953.23(A) (unavoidably prevented/new retroactive right) and dismissal was proper |
| Whether the trial court abused discretion by denying leave to file a delayed Crim.R. 33 new-trial motion based on newly discovered juror-bias evidence | The State: evidence was discoverable earlier; no clear-and-convincing proof of unavoidable prevention | Cunningham: he could not have discovered Mikesell’s relationship with victims’ families until federal discovery in 2009 | The court held Cunningham failed to show he was unavoidably prevented from discovering the evidence within the 120-day rule, so leave was properly denied |
| Whether the court erred in denying funds to employ an investigator for postconviction/new-trial proceedings | Cunningham: denial of investigator deprived him of equal protection and various constitutional rights | The State: no constitutional or statutory right to funding or appointed investigators for a second/untimely petition or for a Crim.R. 33 motion | The court held there is no constitutional or statutory right to appointed experts/investigators in these circumstances; denial was proper |
| Whether statutory challenges to Ohio’s postconviction scheme may be considered on appeal | Cunningham argued R.C. 2953.21/2953.23 are unconstitutional | The State: procedural default/waiver | The court declined to address the constitutional challenges because they were not raised below, and such a failure waives the issue on appeal |
Key Cases Cited
- State v. Cunningham, 105 Ohio St.3d 197 (Ohio 2004) (prior affirmance of convictions and discussion of earlier postconviction proceedings)
- Cunningham v. Hudson, 756 F.3d 477 (6th Cir. 2014) (federal appellate court found juror-bias claim unexhausted and remanded to permit state-court exhaustion)
- State v. Calhoun, 86 Ohio St.3d 279 (Ohio 1999) (postconviction proceedings are statutory and provide only the rights the legislature grants)
- State v. Lott, 97 Ohio St.3d 303 (Ohio 2002) (example of a case addressing new federal rights in postconviction context while still applying statutory framework)
- State v. Perry, 101 Ohio St.3d 118 (Ohio 2004) (discussion of structural error as a constitutional defect not altering the statutory postconviction analysis)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (abuse of discretion standard explanation)