STATE OF OHIO, PLAINTIFF-APPELLEE, v. JERONIQUE CUNNINGHAM, DEFENDANT-APPELLANT.
CASE NO. 1-15-61
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
May 23, 2016
2016-Ohio-3106
OPINION
Judgment Affirmed
Date of Decision: May 23, 2016
APPEARANCES:
Michael J. Benza for Appellant
Jana E. Emerick for Appellee
PRESTON, J.
{¶1} Defendant-appellant, Jeronique Cunningham (“Cunningham“), appeals the September 9, 2015 judgment entry of the Allen County Court of Common Pleas (1) overruling Cunningham‘s petition for postconviction relief, motion for leave to file a delayed motion for a new trial, and motion for funds to employ an investigator and (2) granting the State‘s motion to dismiss Cunningham‘s postconviction petition and delayed motion for a new trial. For the reasons that follow, we affirm.
{¶2} The Supreme Court of Ohio and this court have recited much of the factual
{¶3} Relevant to this appeal, after this court affirmed the trial court‘s denial of Cunningham‘s August 1, 2003 petition for postconviction relief, and after the Supreme Court of Ohio affirmed Cunningham‘s convictions and sentences, including the sentence of death, Cunningham filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Ohio. See Cunningham v. Hudson, N.D.Ohio No. 3:06 CV 0167, 2010 WL 5092705, *11 (Dec. 7, 2010). The district court denied his petition for a writ of habeas corpus. See id. at *78.
{¶4} On appeal from that decision, the [United States Court of Appeals for the] Sixth Circuit issued a per curiam opinion addressing one of Cunningham‘s claims of juror bias. That claim is based on evidence Cunningham acquired during his habeas action that the jury foreperson in his trial had a relationship with the families of the murder victims and that this relationship impacted her impartiality. The court concluded that this claim is unexhausted but not procedurally defaulted, because Cunningham still may raise it in a motion for a new trial or a second petition for post-conviction relief in the Ohio state courts. Cunningham v. Hudson, N.D.Ohio No. 3:06 CV 0167, 2014 WL 5341703, *1 (Oct. 20, 2014), citing Cunningham v. Hudson, 756 F.3d 477, 479 (6th Cir.2014). The Sixth Circuit vacated the district court‘s judgment denying Cunningham‘s petition for a writ of habeas corpus and remanded the petition to the district court “to determine whether it is appropriate to stay-and-abey the petition while Cunningham returns to state court to exhaust this claim.” Cunningham, 756 F.3d at 479.
{¶5} On remand to the district court, the court, on October 20, 2014, “grant[ed] Cunningham‘s request to stay this matter and hold it in abeyance pending exhaustion of his juror-bias claim in state court.” Cunningham, 2014 WL5341703, at *3. The district court further ordered that “Cunningham present a post-conviction petition and/or motion for new trial to the state trial court within sixty (60) days of the issuance of this Opinion & Order.” Id.
{¶6} On December 18, 2014, Cunningham filed in the trial court a second petition for postconviction relief, a motion for leave to file a delayed motion for a new trial, and a motion for funds to employ an investigator. (Doc. Nos. 409, 412, 411). Cunningham‘s December 18, 2014 petition for postconviction relief contained one claim: “The presence of a biased juror deprived Cunningham of a fair trial.” (Doc. No. 409 at 8). Specifically, he alleged that Juror Number 21, Nichole Mikesell (“Mikesell“), “told the jurors that the jury had to return a death sentence because she worked with the victims’ families” through her employment at Allen County Children Services. (Id.). In support, he relied on a private investigator‘s July 16, 2003 affidavit and undated report, the October 29, 2009 depositions of two jurors, Stacie Freeman (“Freeman“) and Roberta Wobler (“Wobler“), the November 9, 2008 deposition of Freeman, the October 26, 2008 deposition of Wobler, and the January 22, 2009 deposition of Mikesell. (Id. at 8-9). Cunningham‘s motion for leave to file a delayed motion for a new trial was similarly based on the purportedly new revelations regarding Mikesell. (See Doc. No. 412).
{¶7} On March 13, 2015, the State filed a combined (1) motion to dismiss Cunningham‘s
{¶8} On September 9, 2015, the trial court filed its judgment entry (1) overruling Cunningham‘s petition for postconviction relief, motion for leave to file a delayed motion for a new trial, and motion for funds to employ an investigator and (2) granting the State‘s motion to dismiss Cunningham‘s postconviction petition and delayed motion for a new trial. (Doc. No. 434).
{¶9} Cunningham filed a notice of appeal on October 5, 2015. (Doc. No. 436). He raises three assignments of error for our review.
Assignment of Error I
The trial court erred in dismissing Cunningham‘s post-conviction petition as a second or successor petition.
{¶10} In his first assignment of error, Cunningham argues that, notwithstanding his August 1, 2003 petition for postconviction relief, the trial court should have treated his December 18, 2014 petition as a timely filed, first petition for postconviction relief. He also argues that, even if his December 18, 2014 petition is an untimely, second petition, he satisfied the conditions of
{¶11}
{¶12} A petition for postconviction relief is subject to strict timeliness requirements. See id. at ¶ 9. At the time Cunningham filed his December 18, 2014 petition for postconviction relief,2
be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of
appeals in the direct appeal of the judgment of conviction or adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court.
See id.
{¶13} “A trial court lacks jurisdiction to entertain an untimely or successive petition for postconviction relief unless the petitioner establishes that one of the exceptions in
a court may entertain an untimely or successive petition for postconviction relief only if the petitioner demonstrates either: (1) he was unavoidably prevented from discovering the facts necessary for the claim for relief; or (2) the United States Supreme Court has recognized a new federal or state right that applies retroactively to
persons in the petitioner‘s situation and the petitioner asserts a claim based on that right.
State v. Lawson, 12th Dist. Clermont No. CA2013-12-093, 2014-Ohio-3554, ¶ 16, citing
{¶14} Cunningham argues that “although this petition is technically second in time to Cunningham‘s first petition for post-conviction relief, it cannot be construed as a ‘second or successive’ petition pursuant to
{¶15} Cunningham‘s arguments are erroneous for a host of reasons. Cunningham fails to realize that a petitioner must establish one of the exceptions in
petitioner files an untimely first petition. See
{¶16} We reject Cunningham‘s argument that we should bypass the requirements of
This Court is not the proper forum for [the petitioner‘s] policy argument. The Ohio General Assembly enacted a postconviction relief statute with clear language and directives. It could have, but did not, make an allowance for the situation [the petitioner] describes. It is not this Court‘s place to rewrite the statute to allow him to proceed with a successive petition. State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, ¶ 30. Where the
language of a statute is clear, this Court cannot interpret it, but must apply it as written. Id.
State v. Hartman, 9th Dist. Summit No. 25055, 2010-Ohio-5734, ¶ 9.
{¶17} Finally, Cunningham‘s reliance on State v. Lott in support of his argument is misplaced. 97 Ohio St.3d 303, 2002-Ohio-6625. That case, unlike this one, involved “a new federal right,” and the Supreme Court of Ohio nevertheless applied
{¶18} “‘Whether to entertain a second or successive petition for postconviction relief lies within the sound discretion of the trial court, and that ruling will not be disturbed on appeal absent a clear showing of abuse of discretion.‘” State v. Keith, 176 Ohio App.3d 260, 2008-Ohio-741, ¶ 22 (3d Dist.), quoting State v. Hayden, 2d Dist. Montgomery No. 21764, 2007-Ohio-5572, ¶ 12, citing State v. Perdue, 2 Ohio App.3d 285, 286 (10th Dist.1981). An abuse of discretion suggests that the trial court‘s decision is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶19} As the trial court pointed out, Cunningham “does not assert that a new federal or state right provides him with the claim he presents in the subject petition.” (Doc. No. 434 at 9). Accordingly, Cunningham was first required to show, under
{20} Cunningham argues, “Even if the Court considers this petition to be a second
conviction counsel, the active obstruction of discovery by the State, and this [trial] Court‘s denial of discovery and fact development that Cunningham was unavoidably prevented from discovering the factual basis of this claim.” (Appellant‘s Brief at 8). Despite Cunningham‘s arguments, the trial court concluded that Cunningham “cannot successfully argue that he was unavoidably prevented from discovering the factual basis of his claim.” (Doc. No. 434 at 10). Because Cunningham‘s arguments do not satisfy the “unavoidably prevented” standard of the
{¶21} In his first petition for postconviction relief—filed on August 1, 2003—Cunningham alleged juror misconduct on the part of Mikesell. (Doc. No. 385). See Cunningham, 2004-Ohio-5892, at ¶ 60. In support of his claim, Cunningham relied on the affidavit and report of a privately hired investigator, who interviewed Mikesell, Freeman, and Wobler. (Doc. No. 386, Ex. D). Accordingly, Mikesell was available and interviewed by a privately hired investigator some time prior to the private investigator‘s July 16, 2003 affidavit—which authenticated his undated report and was within the time specified for filing Cunningham‘s petition for postconviction relief. (Id.). See State v. Crawford, 5th Dist. Richland No. 09-CA-16, 2009-Ohio-5176, ¶ 22; State v. Leyman, 9th Dist. Medina No. 14CA0037-M, 2016-Ohio-59, ¶ 12; State v. Schrock, 11th Dist. Lake
No. 2007-L-191, 2008-Ohio-3745, ¶ 22. Freeman and Wobler were likewise available and interviewed by the privately hired investigator within the time specified for filing Cunningham‘s petition for postconviction relief. (Doc. No. 386, Ex. D). See Leyman at ¶ 12. In addition, although Cunningham asserts that a new factual basis exists demonstrating juror bias on the part of Mikesell, the fact remains that in his first petition for postconviction relief, Cunningham alleged that Mikesell committed “juror misconduct,” that she was prejudiced against Cunningham, and that her presence on the jury “may have also contaminated the remainder of the jury“—the same arguments that Cunningham presents in his second petition for postconviction relief.3 (Doc. No. 385). See Schrock at ¶ 22.
{¶22} All of these circumstances belie Cunningham‘s arguments that the “ineffectiveness of former post-conviction counsel” and the inability to conduct discovery unavoidably prevented him from discovering the factual basis of his second petition for postconviction relief. Moreover, “[t]he fact that appellant raises claims of ineffective assistance of counsel suggests that the bases for his claims could have been uncovered if ‘reasonable diligence’ had been exercised.”
State v. Creech, 4th Dist. Scioto No. 12CA3500, 2013-Ohio-3791, ¶ 18. For these reasons, we conclude that the trial court did not abuse its discretion in concluding that Cunningham did not satisfy the “unavoidably prevented” standard of the
{¶23} Even were we to consider Cunningham‘s arguments that he satisfied
{¶24} Cunningham‘s suggestion that he is exempt from satisfying the entirety of
consider the issue, Cunningham has
{¶25} Finally, Cunningham makes several arguments challenging the constitutionality of Ohio‘s postconviction statutes, namely
{¶26} For the reasons above, the trial court did not abuse its discretion in dismissing Cunningham‘s December 18, 2014 petition for postconviction relief.5 Cunningham‘s first assignment of error is overruled.
Assignment of Error II
The trial court abused its discretion by denying Cunningham‘s [sic] leave to file a delayed motion for a new trial.
{¶27} In his second assignment of error, Cunningham argues that the trial court abused its discretion:
(1) [by] ruling that Cunningham was not unavoidably prevent [sic] from discovering the new evidence within the time limit provided in
Crim.R. 33(B) ; (2) by adopting a single-step procedure to establish both that Cunningham was not unavoidably prevented from filling [sic] a motion for a new trial, and that he did not have sufficient basis for a new trial; (3) by requiring that the evidence Cunningham submitted in support of his motion for a new trial needed to be admissible at trial; and (4) by ruling that the evidence Cunningham submitted in support of his delayed motion for a new trial constituted all the evidence in support of a new trial motion.
(Appellant‘s Brief at 15).
{¶28} Motions for a new trial are governed by
Motions for new trial on account of newly discovered evidence shall be filed within one hundred twenty days after the day upon which
the verdict was rendered, or the decision of the court where trial by jury has been waived. If it is made to appear by clear and convincing proof that the defendant was unavoidably prevented from the discovery of the evidence upon which he must rely, such motion shall be filed within seven days from an order of the court finding that he was unavoidably prevented from discovering the evidence within the one hundred twenty day period.
See Keith at ¶ 38. “Accordingly, a party may not seek a new trial on the basis of newly discovered evidence after the 120-day time limit unless he can demonstrate that he was unavoidably prevented from discovering the new evidence within the
{¶29} “In order to be able to file a motion for a new trial based on newly discovered evidence beyond the 120 days prescribed in the above rule, a petitioner must first file a motion for leave, showing by ‘clear and convincing proof that he has been unavoidably prevented from filing a motion in a timely fashion.‘” Id. at ¶ 40, quoting State v. Graham, 3d Dist. Hancock No. 5-05-13, 2006-Ohio-352, ¶
10, quoting State v. Neace, 3d Dist. Mercer No. 10-99-07, 2000 WL 228921, *4 (Mar. 1, 2000). “The standard of clear and convincing evidence used in
{¶30} Motions for a new trial are addressed to the sound discretion of the trial court. State v. Moore, 3d Dist. Allen No. 1-08-27, 2008-Ohio-6751, ¶ 12. “Thus, a trial court‘s decision to deny such a motion will not be disturbed on appeal absent an abuse of discretion.” Id., citing State v. Ray, 3d Dist. Union No. 14-05-39, 2006-Ohio-5640, ¶ 53, citing State v. Farley, 10th Dist. Franklin No. 03AP-555, 2004-Ohio-1781, ¶ 6-7.
{¶31} Cunningham argues that “[i]t was not until 2009 that it was discovered that Nichole Mikesell had a preexisting relationship with the victims’ families” and that he “could not have known about this fact within the time limit provided in
2009 and that the private investigator‘s July 16, 2003 affidavit and report “did not provide any information relating to juror Mikesell‘s relationship with the victims’ families.” (Id. at 16-17). In denying Cunningham‘s motion for leave to file a
{¶32} We hold that the trial court did not abuse its discretion in concluding that Cunningham was not unavoidably prevented within the 120-day time limit from discovering the purported new evidence of juror misconduct. The record reflects that the jury rendered its verdict on June 20, 2002. (June 20, 2002 Tr. at 154-155). Accordingly, the 120-day time limit for filing a
sometime after trial but before executing his July 16, 2003 affidavit. As we discussed above, these facts belie Cunningham‘s argument that he was unable to discover the purported new evidence of juror misconduct until he was granted the opportunity to conduct discovery in federal court. See State v. Jackson, 3d Dist. Union No. 14-04-11, 2004-Ohio-5103, ¶ 8-9. The purported new evidence of juror misconduct was not undiscoverable simply because, as Cunningham argues, he did not discover it sooner. See id. at ¶ 10, quoting State v. Williams, 12th Dist. Butler No. CA2003-01-001, 2003-Ohio-5873, ¶ 21 (“However, the phrases ‘unavoidably prevented’ and ‘clear and convincing proof’ do not allow one to claim that evidence was undiscoverable simply because affidavits were not obtained sooner.“).
{¶33} To be granted leave to file a motion for a new trial, Cunningham was required to offer clear and convincing proof that he was “unavoidably prevented from the discovery of the evidence upon which he must rely.”
{¶34} Cunningham‘s second assignment of error is overruled.
Assignment of Error III
The trial court erred in denying Cunningham an investigator to assist in the litigation.
{¶35} In his third assignment of error, Cunningham argues, “Because Cunningham was appointed private counsel without a staff of investigators, experts, and other staff, the failure of the trial court to provide those resources denied him Equal Protection of law.” (Appellant‘s Brief at 24). Therefore, he argues, the trial court violated his “rights under the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments as well as Article I, Sections 1, 9, 10, 16, and 20 of the Ohio Constitution.” (Id.). Cunningham is incorrect.
{¶36} “The right to file a postconviction petition is a statutory right, not a constitutional right.” Broom, 146 Ohio St.3d 305, 2016-Ohio-1028, at ¶ 28, citing Calhoun, 86 Ohio St.3d at 281. Thus, the postconviction-relief statutes grant a petitioner only those rights specifically enumerated in them and no more. Id., citing Calhoun at 281. See also State v. Osie, 12th Dist. Butler No. CA2014-10-222, 2015-Ohio-3406, ¶ 39, citing Calhoun at 281. Under,
{¶37} While an indigent defendant sentenced to death has a statutory right under
{¶38} In this case, while Cunningham, as an indigent defendant who received a death sentence, had a statutory right to appointed counsel to pursue a
timely filed, first postconviction petition, he did not have a constitutional or statutory right to the counsel that the trial court appointed for him in pursuing his second postconviction petition. See Conway at ¶ 72. Moreover, even assuming Cunningham was entitled to the appointment of counsel in pursuing his second postconviction petition, he had no constitutional right to an investigator. See Monroe at ¶ 15. Therefore, the trial court did not err in denying his motion for funds to employ an investigator.
{¶39} Cunningham‘s third assignment of error is overruled.
{¶40} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and ROGERS, J., concur.
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