STATE OF OHIO, Respondent-Appellee, vs. DERRICK COOK, Petitioner-Appellant.
APPEAL NO. C-140118
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
November 5, 2014
[Cite as State v. Cook, 2014-Ohio-4900.]
TRIAL NO. B-9001379
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 5, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W. Springman, Jr., Assistant Prosecuting Attorney, for Respondent-Appellee,
Office of the Ohio Public Defender, and Randall L. Porter, Assistant State Public Defender, for Petitioner-Appellant.
{1} Petitioner-appellant Derrick Cook appeals from the Hamilton County Common Pleas Court‘s judgment dismissing his petition under
{2} In 1990, a Hamilton County jury found Cook guilty of aggravated murder, aggravated robbery, and kidnapping in connection with the death of clothing store manager Frank Shorter. For aggravated murder, Cook was sentenced to death.
{3} Cook unsuccessfully challenged his convictions in direct appeals to this court, the Ohio Supreme Court, and the United States Supreme Court, State v. Cook, 1st Dist. Hamilton No. C-900676, 1992 Ohio App. LEXIS 1833 (Apr. 8, 1992), aff‘d, 65 Ohio St.3d 516, 605 N.E.2d 70 (1992), certiorari denied, 510 U.S. 1040, 114 S.Ct. 681, 126 L.Ed.2d 649 (1994), and in a postconviction petition filed in 1994. State v. Cook, 1st Dist. Hamilton No. C-950090, 1995 Ohio App. LEXIS 5768 (Dec. 29, 1995), aff‘d, 74 Ohio St.3d 524, 660 N.E.2d 449 (1996). His petition for a writ of habeas corpus remains pending before the United States District Court for the Southern District of Ohio.
{4} In 2012, Cook again petitioned the common pleas court for relief under
The Jurisdictional Standard
{5} The postconviction petition from which this appeal derives was Cook‘s second petition and was filed well after the time prescribed by
Constitutionality of the Jurisdictional Standard
{6} In his first assignment of error, Cook contends that the common pleas court erred in failing to declare unconstitutional, both on its face and as applied to him,
No Jurisdiction to Entertain Cook‘s Postconviction Claims
{7} The balance of Cook‘s assignments of error challenge the common pleas court‘s failure to grant the relief sought in the claims advanced in his postconviction petition. These challenges are untenable, because the court had no jurisdiction to entertain Cook‘s postconviction claims.
{8} Grand-jury foreperson selection process. In his eighteenth postconviction claim, Cook challenged as discriminatory the process employed by Hamilton County for selecting grand-jury forepersons. This claim was subject to dismissal for lack of jurisdiction, because Cook did not, as he could not, demonstrate that, but for the claimed infirmities in the foreperson selection process, no reasonable factfinder would have found him guilty or eligible for the death sentence. See
{9} Prosecutorial misconduct—undisclosed evidence and false testimony. In claims one through fourteen, Cook contended that he had been denied a fair trial by the state‘s failure to disclose evidence contained in various police notes and reports and witness statements and interviews that impeached trial testimony identifying him as Frank Shorter‘s killer. In his fifteenth and twentieth claims, he asserted that he had been denied a fair trial when the state secured his convictions through its knowing use of, and its failure to correct, testimony and
{10} The fair-trial guarantee of the Due Process Clause of the
{11} Both principles extend to evidence affecting a witness‘s credibility. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue at 269-270. And a claimed constitutional violation under either principle requires proof of “materiality.” See Kyles v. Whitley, 514 U.S. 419, 434-436, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (holding that undisclosed evidence is “material” if, “considered collectively,” the evidence “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict“); United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (holding that false testimony is “material” if “there is any reasonable likelihood that the false testimony could have affected the judgment of the jury“).
{12} But with respect to Cook‘s postconviction Brady and Napue claims, the common pleas court had no occasion to determine whether the undisclosed or allegedly false evidence was “material.” The court had no jurisdiction to entertain those claims, because Cook failed to show by clear and convincing evidence that, but for the alleged
{13} Ineffective counsel. In his sixteenth postconviction claim, Cook asserted that his trial counsel had been ineffective in failing to conduct a reasonable investigation to identify the evidence offered in support of claims one through thirteen, fifteen, and twenty. This challenge to trial counsel‘s effectiveness with respect to Cook‘s Brady and Napue claims depends upon, and thus logically falls with, those claims. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989) (holding that an ineffective-counsel claim requires proof of an outcome-determinative deficiency in counsel‘s performance). Cook failed to show by clear and convincing evidence that, but for his trial counsel‘s alleged ineffectiveness with respect to the undisclosed evidence or the allegedly false testimony, no reasonable factfinder would have found him guilty or eligible for the death sentence. Therefore, the common pleas court had no jurisdiction to entertain his sixteenth claim.
{14} Actual innocence. In his seventeenth postconviction claim, Cook sought relief from his convictions on the ground that the outside evidence offered in support of his other postconviction claims demonstrated that he was actually innocent of the offenses of which he had been convicted. This claim was subject to dismissal, because a claim of actual innocence based on evidence outside the trial record does not provide substantive grounds for relief under
{15} Cumulative error. Finally, in his nineteenth claim, Cook sought relief from his convictions on the ground that he had been denied a fair trial by the accumulation of constitutional deprivations alleged in his other postconviction claims. Under the doctrine of cumulative error, a conviction may be reversed if the cumulative effect of errors deemed separately harmless is to deny the defendant a fair trial. State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus. But Cook‘s cumulative-error claim did not provide a ground for relief from his convictions, because it depended upon proof of, and thus fell upon his failure to demonstrate, multiple constitutional violations in the proceedings leading to his convictions. See State v. Madrigal, 87 Ohio St.3d 378, 398, 721 N.E.2d 52 (2000); State v. Were, 1st Dist. Hamilton No. C-080697, 2009-Ohio-4494, ¶ 88.
Conclusion
{16} The common pleas court properly dismissed Cook‘s postconviction petition, because he failed to satisfy
Judgment affirmed.
CUNNINGHAM, P.J., and HENDON, J., concur
Please note:
The court has recorded its own entry on the date of the release of this opinion.