[Cite as State v. Gray, 2022-Ohio-1945.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111098
v. :
RAMON GRAY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 9, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-08-507759-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Anthony T. Miranda, Assistant Prosecuting
Attorney, for appellee.
G. Michael Goins, for appellant.
FRANK DANIEL CELEBREZZE, III, P.J.:
This cause came to be heard on the accelerated calendar pursuant to
App.R. 11.1 and Loc.App.R. 11.1. Appellant Ramon Gray (“Gray”) appeals from the
judgment of the Cuyahoga County Court of Common Pleas denying his petition for
postconviction relief. After a thorough review of the applicable law and facts, we
affirm the judgment of the trial court.
I. Factual and Procedural History
In 2009, Gray was convicted of two counts of aggravated murder, each
with a capital offense and firearm specification, and one count of having a weapon
while under disability. Gray was sentenced to life in prison without parole.1
Gray appealed his conviction to this court, which overruled all of his
assignments of error and affirmed the judgment of the trial court. State v. Gray,
8th Dist. Cuyahoga No. 92303, 2010-Ohio-240 (“Gray I”). Three of the assignments
of error in Gray I are pertinent to this appeal, to wit: (1) Gray was denied due process
and equal protection of the law because the visiting judge who presided over his trial
was never properly assigned to the case; (2) it was prejudicial error for the trial court
to refer to the specification contained in R.C. 2929.04(A)(5) as a “mass murder”
specification; and (3) the court denied Gray due process and equal protection of the
law when it denied his request for appointment of an expert on eyewitness
identification.
As stated above, this court found no merit to these assignments of error
and affirmed the judgment and sentence of the trial court.
While his direct appeal was pending, Gray filed a petition for
postconviction relief asserting the following challenges: (1) his trial counsel was
1 The particular substantive facts of Gray’s conviction are not relevant to this
appeal. A full recitation of the underlying facts can be found in this court’s opinion in
State v. Gray, 8th Dist. Cuyahoga No. 92303, 2010-Ohio-240, ¶ 2-9.
ineffective in failing to object to the visiting judge who presided over his case; (2) the
trial court should have granted his motion for appointment of an expert during the
trial; and (3) he was prejudiced by the trial court’s references to the course of
conduct specification as the mass murder specification.
In 2014, over five years after his petition for postconviction relief had
been pending, Gray filed a “Corrected Supplemental Affidavit in Support of Petition
for Post-Conviction Relief.” The affidavit submitted was from his brother, Rufus
Gray, stating that Gray was not present at the shooting.
In 2017, Gray filed a motion for leave to file delayed motion for new trial
on the basis of newly discovered evidence. He attached to the motion his own
affidavit and the affidavits of Rufus Gray and Curtis Davis. The trial court conducted
a hearing on the motion and subsequently denied the motion.
The court’s denial of the motion was affirmed by this court in State v.
Gray, 8th Dist. Cuyahoga No. 107394, 2019-Ohio-1638 (“Gray II”). This court held
that Gray had failed to provide clear and convincing evidence that he was
unavoidably prevented from discovering the new evidence, and consequently, the
trial court had not abused its discretion in denying the motion for leave to file
delayed motion for new trial.
In 2020, Gray filed another motion for leave to file a motion for new
trial, again on the basis of newly discovered evidence. The evidence attached to the
motion consisted of the following: (1) Eddie Parker’s written statement to police in
2007; (2) Curtis Davis’s 2017 affidavit claiming that he was fighting with Ramon
Gray at the time of the shooting; (3) an affidavit from Rashida Newell, signed on
March 24, 2020, claiming that Rufus Gray told her in November 2019 that he shot
the victims; (4) an affidavit signed by Rufus Gray on December 2, 2019, claiming
that he shot Willie Deloach and Andre Parker in self-defense; and (5) an affidavit
from Edward W. Rausch, Esq., who filed Gray’s 2017 motion for leave, claiming that
he never knew “Rufus Gray purposefully shot the firearm in self-defense.”
The 2020 motion relied on the same evidence that the trial court
already rejected in 2018 and that this court affirmed in Gray II. Consequently, the
trial court denied Gray’s motion, holding that the evidence was not newly discovered
and that Gray was not unavoidably prevented from discovering the information.
The court further found that Gray’s claims were barred by the doctrine of res
judicata.
This court again unanimously affirmed the trial court’s decision
denying the motion. State v. Gray, 8th Dist. Cuyahoga No. 110283, 2021-Ohio-3670
(“Gray III”). The panel noted that Gray’s arguments in Gray III were identical to
the arguments presented in Gray II. Gray III at ¶ 11. It therefore held that Gray’s
arguments were barred by res judicata and that Rufus Gray’s affidavit did not
constitute new evidence. Gray III at ¶ 16.
In July 2021, Gray filed a petition for a writ of procedendo against the
trial court, seeking an order ruling on his petition for postconviction relief. This
court issued a writ of procedendo and ordered the trial court to issue findings of fact
and conclusions of law within 30 days. Gray v. Miday, 8th Dist. Cuyahoga No.
110646, 2021-Ohio-4138.
The trial court then denied the petition, finding that Gray’s claims
were barred by res judicata because they had been raised on direct appeal and that
none of the claims relied upon information dehors the record. The court further
determined that even if Gray’s claims were not barred by res judicata, they were
without merit.
Gray then filed the instant appeal, raising two assignments of error for
our review:
1. The trial court abused its discretion when it denied Gray’s petition
for postconviction relief in violation of the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution.
2. The trial court erred in denying Gray’s petition for postconviction
relief where he presented sufficient evidence dehors the record to merit
an evidentiary hearing.
II. Law and Analysis
The doctrine of res judicata precludes a convicted defendant from
raising an issue in a motion for postconviction relief if he raised or could have raised
the issue on direct appeal. State v. Sturdivant, 8th Dist. Cuyahoga No. 98747, 2013-
Ohio-584, ¶ 13, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967),
paragraph nine of the syllabus. All of the claims raised in Gray’s petition were
presented as assignments of error in his direct appeal and found to be without merit.
Specifically, this court determined that (1) Gray’s argument regarding
the visiting judge was waived because Gray failed to object to the case transfer;
(2) Gray also failed to object to the use of “mass murder” specification, but
regardless, the error was not prejudicial; and (3) the denial of the requested expert
assistance did not result in an unfair trial because the DNA, forensic, and other
inculpatory evidence tying Gray to the crime substantially corroborated the
eyewitness identification. Gray I at ¶ 10, 38, and 52.
Accordingly, we find that the claims asserted in Gray’s petition for
postconviction relief were already raised and considered in Gray I. The trial court
therefore properly determined that the doctrine of res judicata barred any further
consideration of these claims. Gray’s first assignment of error is overruled.
Gray’s second assignment of error argues that the trial court erred in
denying his petition when he presented sufficient evidence dehors the record. Gray
contends that because he presented such evidence and stated sufficient operative
facts, he was entitled to an evidentiary hearing.
A trial court does not abuse its discretion in dismissing a petition for
postconviction relief without a hearing where (1) the petitioner fails to set forth
sufficient operative facts to establish substantive grounds for relief; or (2) the
operation of res judicata prohibits the claims advanced in the petition. State v.
Jordan, 8th Dist. Cuyahoga No. 109345, 2021-Ohio-701, ¶ 11, citing State v.
Abdussatar, 8th Dist. Cuyahoga No. 92439, 2009-Ohio-5232, ¶ 15-16. “The
evidence submitted with the petition must be competent, relevant, and material and
not merely cumulative of or alternative to evidence presented at trial.” Id., citing
State v. Combs, 100 Ohio App.3d 90, 97-98, 652 N.E.2d 205 (1st Dist.1994).
In 2014, over five years after his petition had been pending, Gray filed
a “Corrected Supplemental Affidavit in Support of Petition for Post-Conviction
Relief.” The record reflects that Gray did not seek leave to supplement his petition,
and he does not argue otherwise. The supplement was an affidavit by Rufus Gray,
stating that Gray was not present at the shooting. The statements in the affidavit
did not relate to any of the claims raised in Gray’s petition for postconviction relief.
Before the state has filed a response to the petition for postconviction
relief, a petitioner may amend his or her petition without seeking leave of court;
however, once the state has responded to the petition, the petitioner may amend his
or her petition only with leave of court. R.C. 2953.21(F); State v. Young, 10th Dist.
Franklin No. 05AP-641, 2006-Ohio-1165, ¶ 28.
As the state had already responded to Gray’s petition, Gray was
required to seek leave to amend or supplement his petition. Even assuming
arguendo that his supplement was proper, though, the affidavit presented did not
pertain to the claims raised in Gray’s petition. Accordingly, Gray did not present
any evidence dehors the record that was relevant to his petition, and his second
assignment of error is overruled.
III. Conclusion
The trial court did not err in denying Gray’s petition for
postconviction relief and properly found that all of the claims raised in his petition
were barred by res judicata. Both of Gray’s assignments of error are overruled.
Judgment 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
MARY J. BOYLE, J., CONCUR