State v. Diaz, 2016 Ohio 7526

Pedro A. Diaz was convicted by a jury in 2005 of murder and aggravated robbery, each with a firearm specification; convictions were affirmed on direct appeal with remand for resentencing under State v. Foster.
Diaz filed multiple postconviction petitions (2006, 2008, 2008); those were denied and the denials were affirmed on appeal.
In 2015 Diaz sought trial transcripts at state expense; that request was denied and he did not appeal that denial.
On April 15, 2016 Diaz filed his fifth petition for postconviction relief alleging: an unsigned grand jury indictment (fatally defective), failure to instruct the jury on involuntary manslaughter, and entitlement to a new trial because he could not obtain transcripts.
The trial court denied the 2016 petition as untimely and a successive petition barred by R.C. 2953.23; the court declined to hold an evidentiary hearing.
On appeal, the Sixth District affirmed, finding Diaz failed to satisfy the exceptions allowing review of untimely or successive petitions (no claim of unavoidable prevention of discovery, no newly recognized retroactive right, and no DNA-based actual innocence claim).

Issue	Diaz's Argument	State's Argument	Held
Validity of indictment (signed by foreperson)	Indictment was not signed by grand jury foreperson and is thus void	Record shows indictment was signed; claim was discoverable earlier	Rejected — indictment was signed; claim not unavoidably undiscoverable
Failure to instruct on lesser included offense	Trial court erred by not instructing jury on involuntary manslaughter	Instruction issue was available on direct appeal and is untimely/successive	Rejected — untimely/successive; not meeting statutory exceptions
Entitlement to new trial for lack of transcript	Lack of access to transcripts entitles him to a new trial under State v. Jones	Transcripts were filed in direct appeal in 2006; issue was discoverable earlier	Rejected — transcripts were available on direct appeal; claim untimely
Right to evidentiary hearing on 2016 petition	Trial court abused discretion by denying a hearing on the petition	Petition was jurisdictionally barred as successive/untimely under R.C. 2953.23	Rejected — trial court lacked jurisdiction to entertain petition or hold a hearing

State v. Foster, 845 N.E.2d 470 (Ohio 2006) (governing post-Foster resentencing procedure)
State v. Jones, 643 N.E.2d 547 (Ohio 1994) (addressing relief when trial record is unavailable to appellant)