STATE OF OHIO v. JAMIL ABDUL SHABAZZ
No. 98601
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 31, 2013
[Cite as State v. Shabazz, 2013-Ohio-267.]
BEFORE: E.A. Gallagher, J., Boyle, P.J., and Kilbane, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-495551
Jamil Abdul Shabazz, pro se
Inmate No. 541-031
Allen Correctional Institution
P.O. Box 4501
Lima, Ohio 45802
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Jamil Adbul Shabazz appeals from the Cuyahoga County Court of Common Pleas’ denial of his motion for a new trial. For the following reasons, we affirm.
{¶2} A brief account of appellant‘s lengthy history before this court is necessary. Appellant was indicted on April 26, 2007, charged with one count of aggravated murder with a three-year firearm specification, a notice of prior conviction and a repeat violent offender specification. Prior to the commencement of trial, appellant executed a jury waiver as to the notice of prior conviction and repeat violent offender specification.
{¶3} Appellant was found guilty of the lesser-included offense of murder as well as the attached three-year firearm specification by a jury verdict rendered on November 19, 2007. The trial court found appellant guilty of the notice of prior conviction and repeat violent offender specifications. Appellant was sentenced to a prison term of 15 years to life on the murder charge to run consecutively to a three-year prison term for the firearm specification.
{¶4} Appellant brought a direct appeal of his conviction in State v. Shabazz Abdul, 8th Dist. No. 90789, 2009-Ohio-225 (“Shabazz I“). Appellant asserted two assignments of error: ineffective assistance of counsel and the trial court‘s denial of his
{¶5} On May 7, 2009, appellant applied to reopen our judgment in Shabazz I based on a claim of ineffective assistance of appellate counsel. In State v. Shabazz Abdul, 8th Dist. No. 90789, 2009-Ohio-6300 (“Shabazz II“), we denied appellant‘s application.
{¶6} While Abdul II was pending, appellant filed a petition for post-conviction relief in the trial court. The state filed a motion for summary judgment, which was granted by the trial court. On appeal in State v. Abdul Shabazz, 8th Dist. No. 94738, 2010-Ohio-5789 (“Shabazz III“), appellant asserted seven assignments of error. We rejected all seven of appellant‘s errors and affirmed the judgment of the trial court.1
{¶7} On May 17, 2012, appellant filed the motion for a new trial that is the subject of the present appeal. The trial court denied appellant‘s motion in a journal entry dated May 24, 2012. Appellant appealed presenting four assignments of error. In his first and second assignments of error, appellant argues that his indictment was not presented to a grand jury and not signed by the foreman of a grand jury. In his third assignment of error, appellant argues that his due process rights were violated by the amendment of the indictment at trial to include lesser-included offenses. In his fourth
{¶8} Motions for a new trial are governed by the framework provided in
{¶9} Although not raised in appellant‘s motion for a new trial before the trial court, appellant now asserts that his motion is based on newly discovered evidence. However, none of appellant‘s assignments of error pertain to newly discovered evidence. Appellant did not seek leave of the court to file a motion for a new trial outside the
{¶10} Even if appellant‘s motion was not time barred pursuant to
a final judgment of conviction bars the convicted defendant 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 that resulted in that judgment of conviction or on an appeal from that judgment.
State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967); accord State v. Briscoe, 8th Dist. No. 98414, 2012-Ohio-4943, ¶ 13.
{¶11} Each of appellant‘s assignments of error pertain to matters that were squarely within the record at the time of appellant‘s direct appeal. Because they were not raised on direct appeal, appellant is barred by the doctrine of res judicata from raising them in this subsequent action.
{¶12} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant 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 common pleas court to carry this judgment into execution. The defendant‘s conviction having
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
MARY EILEEN KILBANE, J., CONCUR