2011 Ohio 2001
Ohio Ct. App.2011Background
- Appellant Jack Davis filed a third application to reopen his appeal under App.R. 26(B).
- Davis was convicted in 2004 of two counts of gross sexual imposition and one count of rape, receiving a 13-year sentence.
- This Court previously denied Davis’s first reopening (2007) for lack of timeliness and sworn statement and for lack of Supreme Court appeal, citing res judicata.
- A second reopening (2008) was denied for being untimely and for failing to address deficiencies from the first filing; no right to a second reopening was recognized.
- Davis’s third reopening application attaches affidavits that do not address the alleged deficient performance or the time limits, mirroring previous deficiencies.
- The court reaffirmed that a defendant cannot file a second or successive application to reopen and denied the third application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the third App.R. 26(B) reopening is permissible | Davis argues ineffective assistance of appellate counsel warrants reopening | Davis’s filings are untimely and first raised issues already barred by res judicata | Denied; third reopening barred as improper and untimely |
Key Cases Cited
- State v. Twyford, 106 Ohio St.3d 176 (2005-Ohio-4380) (limits on successive applications to reopen)
- State v. Williams, 99 Ohio St.3d 179 (2003-Ohio-3079) (restrictions on repeatedly raising ineffective-assistance claims)
- State v. Cooey, 99 Ohio St.3d 345 (2003-Ohio-3914) (res judicata applies to reopenings)
- State v. Richardson, 74 Ohio St.3d 235 (1996-Ohio-) (procedural bars on successive post-conviction relief)
- State v. Cheren, 73 Ohio St.3d 137 (1995-Ohio-) (res judicata and limits on reopening)
- Perry, 10 Ohio St.2d 175 (1967-Ohio-) (core principles of post-conviction and reopening limits)