State v. McKelton, 55 N.E.3d 26

Calvin McKelton was convicted and sentenced to death in 2010 for two murders (victim Margaret Allen and Germaine Lamar Evans) after a jury trial; his direct appeal remains pending in the Ohio Supreme Court.
McKelton filed a timely postconviction petition in December 2011 (amended four times), raising 34 grounds; the trial court denied it without a hearing and this court affirmed in McKelton I.
One day after this court affirmed denial of his initial petition, McKelton filed a successive postconviction petition (October 2015) asserting additional claims and attaching seven exhibits; the trial court summarily denied the successive petition.
McKelton appealed pro se, raising three assignments of error: (1) denial of leave to conduct discovery, (2) failure to hold an evidentiary hearing on the successive petition, and (3) ineffective assistance of appellate counsel for not raising a Brady claim.
The court reviewed statutory timeliness and exceptions under Ohio postconviction law (R.C. 2953.21–.23) and concluded the successive petition did not present newly discovered evidence or facts showing McKelton was unavoidably prevented from earlier discovery; res judicata and lack of jurisdiction for untimely claims applied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court erred by denying an evidentiary hearing on McKelton's successive petition	McKelton: exhibits and prior claims demonstrate constitutional error requiring a hearing	State: petition is untimely, exhibits are not newly discovered and claims are barred by res judicata	Denied — no newly discovered evidence; threshold exceptions not met; res judicata/lack of jurisdiction affirmed
Whether McKelton was entitled to discovery before denial of his successive petition	McKelton: trial court should have allowed discovery to develop operative facts outside the record	State: postconviction statutes do not guarantee discovery; no operative facts shown to justify discovery	Denied — discovery not warranted because petition lacked operative facts outside the record
Whether ineffective assistance of appellate/postconviction counsel is a cognizable ground in postconviction proceedings	McKelton: appellate counsel failed to raise Brady and was ineffective in McKelton I	State: statutory scheme bars collateral attacks on counsel performance in postconviction proceedings	Denied — Sixth Amendment right to effective counsel does not extend to state postconviction proceedings under R.C. 2953.21(I)(2)

State v. Calhoun, 86 Ohio St.3d 279 (1999) (explains postconviction relief as collateral civil attack and when hearings are required)
Brady v. Maryland, 373 U.S. 83 (1963) (prosecution must disclose materially exculpatory evidence)
Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997) (discusses lack of constitutional right to effective assistance of counsel in civil proceedings)
Coleman v. Thompson, 501 U.S. 722 (1991) (procedural default and limits on federal review of state collateral proceedings)
State v. Steffen, 70 Ohio St.3d 399 (1994) (postconviction collateral review is not a constitutional right)