{¶ 2} On January 4, 1999, appellant was found guilty on two counts of rape1 and sentenced to concurrent life sentences. On January 8, 1999, a sexual classification hearing took place wherein appellant was found to be a sexual predator. On February 19, 1999, appellant filed a motion for new trial. On March 10, 1999, appellant filed his direct appeal.2 On March 15, 1999, the trial court denied appellant's motion for new trial. On August 24, 2000, this court affirmed appellant's conviction.
{¶ 3} On December 17, 1999, appellant filed a petition to vacate or set aside his sentence. This petition for postconviction relief was denied on February 29, 2000. Appellant appealed, advancing as error the trial court's failure to conduct a hearing on his petition.
{¶ 4} On November 22, 2000, this court affirmed the trial court's decision denying appellant's motion for postconviction relief.3 Appellant then filed an application for delayed reopening which was denied.
{¶ 5} On August 16, 2002, appellant filed a motion for leave to file second and successive postconviction petition which was denied. On December 13, 2002, appellant filed a motion for judgment with response and findings of fact and conclusions of law. On February 3, 2003, the trial court denied said motion and appellant appealed.4
{¶ 6} On July 31, 2003, appellant filed with the trial court a motion for relief from judgment and motion for leave to file motion for new trial. On August 20, 2003, the trial court denied appellant's motions. It is from this denial that appellant advances three assignments of error for our review.
{¶ 8} The state initially argues that Civ.R. 60(B) motions for relief from judgment are civil in nature and are, therefore, inapplicable in criminal proceedings. However, under R.C.
{¶ 9} A petition for postconviction relief, R.C.
{¶ 10} We find that appellant's motion for relief from judgment and motion for new trial meet the definition of a motion for postconviction relief because they are motions that 1) were filed subsequent to appellant's direct appeal;5 2) claimed denials of constitutional rights;6 3) sought to render the judgment void; and 4) asked for vacation of the judgment.7 State v. Graff, Cuyahoga App. No. 83307,
{¶ 11} In his argument, appellant contends that "a pro-se, incarcerated inmate involved in important legal litigation against the state is entitled to have pleadings liberally construed." In support of this contention, appellant citesLarkins v. Ohio Dept. of Rehab. Corr. (2000),
{¶ 12} A postconviction relief proceeding is a collateral civil attack on a criminal conviction. As such, a defendant's right to postconviction relief is not a constitutional right, but is a right created by statute. Therefore, a petitioner receives no more rights than those granted by the statute. State v.Briscoe (Nov. 22, 2000), Cuyahoga App. No. 77832.
{¶ 13} Despite appellant's interpretation of Larkins, the court actually held that "where inmates are attempting to represent themselves in important litigation, we believe that they should be granted some leeway as to compliance with strict pleading requirements." We are confident the Larkins court did not champion the liberal construction of pro se pleadings by its use of the word "leeway." "Leeway" suggests overlooking minor procedural or technical oversights, not changing established standards of review.
{¶ 14} Likewise, appellant's reliance on Boag, supra, is misplaced. In Boag, the United States Supreme Court held that "federal courts must construe inartful pleading liberally in pro se actions, Haines v. Kerner,
{¶ 15} We have consistently held that "in Ohio, pro se litigants are bound by the same rules and procedures as those litigants who retain counsel. They are not to be accorded greater rights and must accept the results of their own mistakes and errors." Tisdale v. Javitch, Block Rathbone, Cuyahoga App. No. 83119,
{¶ 16} Appellant filed his motion for relief from judgment on July 31, 2003. Civ.R. 60(B) provides that a motion for relief from judgment must be brought within a reasonable time, and where the grounds for relief are Civ.R. 60(B)(1), (2), or (3), not more than one year after the judgment. GTE Automatic Elec. v. ARCIndus. (1976),
{¶ 17} The trial court elected not to issue an opinion in denying the motions. Appellant's argument is that the court denied his motions based on unreasonable delay. The state argues the denial was based on the absence of operative facts. We find that, all timing issues aside, the trial court properly denied appellant's motion for relief based on a lack of operative facts.
{¶ 18} To merit Civ.R. 60(B) relief, a movant must set forth operative facts which would warrant relief from judgment. The allegation of operative facts must be of such evidentiary quality as affidavits, depositions, answers to interrogatories, written admissions, written stipulations, or other sworn testimony. Unsworn allegations of operative facts contained in a motion for relief from judgment or in the brief attached to the motion are not sufficient evidence upon which to grant the motion.
{¶ 19} In the case sub judice, appellant presents a self-serving affidavit stating he did not receive notice of the judgment entries. If the petitioner fails to put forth sufficient substantive evidence demonstrating that he is entitled to relief, then the trial court is not required to hold an evidentiary hearing on the petition and may properly deny the petition.State v. Boyd, Montgomery App. Case No. 18873,
{¶ 20} Appellant's first assignment of error is overruled.
{¶ 22} Pursuant to the res judicata doctrine, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction or on an appeal from that judgment. Statev. Graff, Cuyahoga App. No. 83307,
{¶ 23} To overcome the res judicata bar, evidence offered must demonstrate that the petitioner could not have appealed the constitutional claim based upon information in the original record. State v. Vasquez, Cuyahoga App. No. 82156,
{¶ 24} Appellant argues that the newly discovered evidence he wishes to present was unattainable due, in large part, to the ineffectiveness of his counsel. However, appellant has previously argued ineffective assistance of counsel to no avail. This court has previously affirmed the trial court's denial of appellant's second petition for postconviction relief despite appellant's argument of ineffective assistance. State v. Briscoe (Feb. 5, 2004), Cuyahoga App. No. 82557. Appellant has failed to establish that, but for any error by counsel, the outcome of his trial would have been different. Strickland v. Washington (1984),
{¶ 25} Appellant's second assignment of error is overruled.
{¶ 27} Appellant argues that the trial judge was predisposed to deny his motions for relief from judgment and new trial. Specifically, appellant argues that during his sentencing the judge made comments that called into question her impartiality. However, appellant's arguments are those that should have been raised on direct appeal. The result of failing to present such arguments on direct appeal is fatal under the doctrine of res judicata.
{¶ 28} Appellant's third assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Karpinski, P.J., and McMonagle, J., concur.