THE STATE OF OHIO, APPELLEE, v. MOORE, APPELLANT.
No. 01-768
SUPREME COURT OF OHIO
December 19, 2001
93 Ohio St.3d 649 | 2001-Ohio-1892
Submitted September 18, 2001. APPEAL from the Court of Appeals for Hamilton County, No. C-950009.
Per Curiam.
{¶ 1} Appellant, Lee E. Moore, Jr., was convicted of the aggravated murder of Melvin Olinger and sentenced to death. The court of appeals affirmed his conviction and sеntence. State v. Moore (Jun. 26, 1996), Hamilton App. No. C-950009, unreported, 1996 WL 348193. We also affirmed Moore’s conviction and death sentence. State v. Moore (1998), 81 Ohio St.3d 22, 689 N.E.2d 1.
{¶ 2} Subsequently, the court of appeals affirmed the trial court’s decision to deny Moore’s petition for postconviction relief. State v. Moore (Sept. 18, 1998), Hamilton App. No. C-970353, unreported, 1998 WL 638353. We refused to accept Moore’s appeal of that decision. State v. Moore (1999), 84 Ohio St.3d 1472, 704 N.E.2d 579.
{¶ 3} On September 7, 2000, Moore filed an application with the court of appeals to reopen his direct appeal pursuant to
{¶ 4} Moore raises six issues in this appeal. In his fourth proposition, Moore argues that the judges of the court of appeals erred by denying his request that they recuse themselves from ruling on his
{¶ 5} In his fifth proposition, Moore argues that the court of appeals erred when it implicitly denied his requests for аn evidentiary hearing, permission to depose defense and appellate counsel, and funds to retain an expert witness regarding ineffectiveness of counsel. Howevеr, a reviewing court cannot add matter to the record that was not part of the trial court’s proceedings and then decide the appeal on the basis of the new mаtter. See State v. Ishmail (1978), 54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500. Nor can the effectiveness of appellate counsel be judged by adding new matter to the record and then arguing that counsel should have raised these new issuеs revealed by this newly added material. Thus, Moore’s request lacks merit.
{¶ 6} In his fifth proposition, Moore also claims that the court of appeals erred by implicitly denying his request for thе appointment of counsel to represent him for the
{¶ 7} In his sixth proposition, Moore asserts that he had “good cause” for the late filing of his application for reconsideration under
{¶ 8} Moore’s first, second, and third propositions argue the merits оf issues that he claims his former appellate lawyers should have raised. This court has held that the two-pronged analysis found in Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693, is the appropriate standard to assess whether аn applicant has raised a genuine issue as to the ineffectiveness of appellate counsel in an application for reopening pursuant to
{¶ 9} “To show ineffective assistance, [Moore] must prove that his counsel were deficient for failing to raise the issues he now presents and that there was a reasonable probability of success had he presented those claims on appeal.” State v. Sheppard (2001), 91 Ohio St.3d 329, 330, 744 N.E.2d 770, 771, citing State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus. Moreover, to justify reopening his appeal, Moore “bears the burdеn of establishing that there was a ‘genuine issue’ as to whether he has a ‘colorable claim’ of ineffective assistance of counsel on appeal.” State v. Spivey, 84 Ohio St.3d at 25, 701 N.E.2d at 697.
{¶ 10} We have reviеwed Moore’s assertions of deficient performance by appellate counsel and find that Moore has failed to raise “a genuine issue as to whether [he] was deprived of the effective assistance of counsel on appeal” before the application to reopen can be granted, as required under
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
COOK and LUNDBERG STRATTON, JJ., concur in judgment only.
THE STATE OF OHIO, APPELLEE, v. MOORE, APPELLANT.
No. 01-768
SUPREME COURT OF OHIO
December 19, 2001
{¶ 11} Today’s majority reaches the merits of Moore’s
{¶ 12} First, the majority’s discussion of Moore’s failure to demonstrate “good cause” under
{¶ 13}
{¶ 14} Second, the majority’s evaluation of the merits of Moore’s ineffectiveness claims is unnecessary. This court shоuld not even reach the merits of Moore’s allegations. As the court of appeals correctly reasoned, consideration of Moore’s arguments is precluded by the doctrine of res judicata. This doctrine operates to bar further litigation of issues that a party previously raised or could have previously raised in an appeal. State v. Houston (1995), 73 Ohio St.3d 346, 347, 652 N.E.2d 1018, 1019. We previously сonsidered Moore’s appeal as of right in his direct appeal from the 1996 judgment of the First District Court of Appeals. See State v. Moore (1998), 81 Ohio St.3d 22, 689 N.E.2d 1. The appellate counsel representing Moore before this court at that time differed from the appellate counsel who represented Moore before the court of appeals. See id. at 24, 689 N.E.2d at 7; State v. Moore (June 26, 1996), Hamilton App. No. C-950009, unreported, 1996 WL 348193. Because Moore raises claims of ineffective assistance in his
For the foregoing reasons, I concur in judgment only.
LUNDBERG STRATTON, J., concurs in the foregoing opinion.
Michael K. Allen, Hamilton County Prosecuting Attorney, and William E. Breyer, Assistant Prosecuting Attorney, for appellee.
Lori Leon, for appellant.