[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Johnson, Slip Opinion No. 2024-Ohio-134.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-134
THE STATE OF OHIO, APPELLEE, v. JOHNSON, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Johnson, Slip Opinion No. 2024-Ohio-134.]
Criminal law—Postconviction relief—R.C. 2953.21 and 2953.23—Recantation
evidence—Trial court could have no jurisdiction to entertain untimely,
successive petition for postconviction relief unless petitioner established
(1) that he was unavoidably prevented from timely discovering that victim
had doubts about victim’s trial testimony and (2) that he would not have
been convicted but for constitutional error at trial—R.C. 2953.23 requires
a petitioner to submit evidence of specific facts beyond supporting
affidavit’s date to explain why petitioner was unable to timely obtain an
affidavit from recanting witness—A conviction based on false testimony is
not a constitutional violation unless the state had knowledge of testimony’s
falsity—Court of appeals’ judgment affirmed.
(No. 2022-0488—Submitted April 18, 2023—Decided January 18, 2024.)
APPEAL from the Court of Appeals for Cuyahoga County,
SUPREME COURT OF OHIO
No. 110347, 2022-Ohio-81.
__________________
DETERS, J.
{¶ 1} Ohio law permits a person convicted of a criminal offense to petition
the trial court to vacate his conviction when he believes “there was such a denial or
infringement of [his] rights as to render the judgment void or voidable under the
Ohio Constitution or the Constitution of the United States.”
R.C. 2953.21(A)(1)(a)(i). But the statutory scheme governing such postconviction
relief limits offenders to one petition and circumscribes the time for filing. R.C.
2953.23 and 2953.21(A)(2). A trial court generally has no jurisdiction to consider
an untimely or successive petition. State v. Apanovitch, 155 Ohio St.3d 358, 2018-
Ohio-4744, 121 N.E.3d 351, ¶ 35-36, 38. This jurisdictional bar, however, is not
insurmountable. A petitioner can overcome the bar if he shows that he was
“unavoidably prevented” from discovering the facts on which his claim relies and
that but for constitutional error at trial, he would not have been convicted. R.C.
2953.23(A)(1); State v. Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d
470, ¶ 20.
{¶ 2} Years after a jury found appellant, Eric Johnson, guilty of attempted
murder and various other offenses, he invoked the postconviction-relief statutes and
petitioned the trial court in a bid to have his convictions vacated. His petition was
untimely and successive. To satisfy the jurisdictional requirements, Johnson relied
on an affidavit of the victim in which the victim called into question his
identification of Johnson as the assailant soon after the attack and at trial. Was that
evidence sufficient to rebut Ohio’s general prohibition on untimely, successive
postconviction petitions?
{¶ 3} The trial court and the Eighth District Court of Appeals said no. We
agree. Based on the plain language of Ohio’s postconviction statutes, Johnson bore
the burden of proving not only that he was prevented, but that he was unavoidably
2
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prevented, from timely discovering the victim’s recantation. Reference to the date
that such an affidavit was executed or provided does not, standing alone, satisfy his
burden. Because Johnson provided no additional evidence as to why he could not
timely obtain an affidavit from the witness, we affirm the Eighth District’s
judgment.
I. BACKGROUND
A. Johnson is convicted following a jury trial
{¶ 4} While walking in Cleveland during the early morning of August 26,
2012, James Keith was robbed and shot. As the Eighth District noted below, Keith
told police that the shooter was an acquaintance that he knew as “E,” though he did
not know E’s given name. 2022-Ohio-81, ¶ 2. Police obtained a photograph of the
person known as “E” and prepared a photo array with him in it. Keith viewed the
photo array and identified Johnson as E.
{¶ 5} Johnson was indicted on seven counts relating to the attack on Keith:
one count of kidnapping, two counts of aggravated robbery, two counts of felonious
assault, one count of attempted murder, and one count of petty theft. Following a
jury trial during which Keith again identified Johnson as the assailant, the jury
found Johnson guilty on all counts. He was sentenced to an aggregate prison term
of 21 years. The Eighth District affirmed Johnson’s convictions on direct appeal.
State v. Johnson, 8th Dist. Cuyahoga No. 99822, 2014-Ohio-494, ¶ 1-2, 74.
B. Johnson’s postconviction proceedings
{¶ 6} Johnson’s efforts to obtain postconviction relief began while his direct
appeal was pending. The trial court denied Johnson’s first petition for
postconviction relief, which alleged that he had received ineffective assistance of
counsel. State v. Johnson, 8th Dist. Cuyahoga No. 101993, 2015-Ohio 1649, ¶ 5-
6. The Eighth District affirmed. Id. at ¶ 25-26. In 2017, Johnson attempted to file
a second petition for postconviction relief, alleging that his attempted-felony-
murder offense was not a cognizable offense in Ohio. State v. Johnson, 8th Dist.
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SUPREME COURT OF OHIO
Cuyahoga No. 106670, 2018-Ohio-3799, ¶ 6. That petition was both untimely and
successive, and the trial court denied Johnson’s motion for leave to file the petition.
Id. at ¶ 7. The Eighth District affirmed that judgment. Id. at ¶ 12-13.
{¶ 7} Johnson’s third petition for postconviction relief, filed on November
13, 2020, is the subject of this appeal. This time, Johnson claimed that Keith had
recanted his trial testimony identifying Johnson as his attacker. In a handwritten
affidavit dated August 26, 2020, Keith distanced himself from his trial testimony.
He stated in the affidavit that his “only recollection of [his] assailant [was] that [the
assailant] was an African American man with gold teeth” and that he does not “have
much of a memory of the night of the incident after being placed in the ambulance.”
Commenting on his trial testimony, he explained in the affidavit that he had “felt
pressured by [a police detective] to * * * testify against Mr. Johnson even though
[he] wasn’t sure [Johnson] was the person who committed these crimes against
[him].” And he revealed that he believes that he “identified the wrong person” as
his attacker and that he has had doubts about his trial testimony for “the past seven
years.”
{¶ 8} The trial court denied Johnson’s petition without a hearing, and the
court of appeals affirmed that decision. 2022-Ohio-81 at ¶ 22-23. We accepted
jurisdiction over Johnson’s appeal to address the following proposition of law:
A defendant’s rights to due process of law and a fair trial
pursuant to the Fifth and Fourteenth Amendments to the United
States Constitution and Section 16, Article I of the Ohio
Constitution are violated when the trial court denies a defendant’s
petition for postconviction relief based on newly discovered
evidence and is in contravention to the precedent recently
established by this Court’s recent decision in State v. Bethel, [167
Ohio St.3d 362,] 2022-Ohio-783[, 192 N.E.3d 470].
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January Term, 2024
See 167 Ohio St.3d 1490, 2022-Ohio-2788, 193 N.E.3d 563.
II. ANALYSIS
A. Ohio’s postconviction-petition scheme
{¶ 9} In Ohio, “[a]ny person who has been convicted of a criminal offense
* * * and who claims that there was such a denial or infringement of the person’s
rights as to render the judgment void or voidable under the Ohio Constitution or the
Constitution of the United States” is permitted to “file a petition in the court that
imposed [the] sentence, * * * asking the court to vacate or set aside the judgment
or sentence.” R.C. 2953.21(A)(1)(a). But a person has a limited time within which
to do so. “Except as otherwise provided in [R.C. 2953.23], a petition * * * shall be
filed no later than three hundred sixty-five 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 * * *.” R.C. 2953.21(A)(2)(a).1
{¶ 10} A trial court does not have subject-matter jurisdiction to adjudicate
a postconviction petition that is untimely—i.e., filed outside the statutory deadline
under R.C. 2953.21(A)(2)—or successive—i.e., a second or subsequent petition.
See Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, at ¶ 36, 38.
There are two exceptions to this jurisdictional bar. See R.C. 2953.23(A)(1) and (2).
One is relevant here. A trial court may entertain an untimely or successive petition
if “the petitioner shows that the petitioner was unavoidably prevented from
discovery of the facts upon which the petitioner must rely to present the claim for
relief” and “[t]he petitioner shows by clear and convincing evidence that, but for
1. At the time of Johnson’s convictions, the deadline for filing a petition for postconviction relief
was 180 days, not 365. See former R.C. 2953.21(A)(2), 2010 Sub.S.B. No. 77. The shorter deadline
makes no material difference in this case because Johnson’s petition was filed well after the statutory
deadline regardless of whether it was 180 days or 365.
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SUPREME COURT OF OHIO
constitutional error at trial, no reasonable factfinder would have found the petitioner
guilty.”2 R.C. 2953.23(A)(1)(a) and (b).
{¶ 11} “We review de novo whether the trial court had subject-matter
jurisdiction to entertain [a] petition [for postconviction relief].” Bethel, 167 Ohio
St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, at ¶ 20, citing Apanovitch at ¶ 24.
B. Johnson’s petition did not satisfy R.C. 2953.23(A)(1)
{¶ 12} The petition for postconviction relief at issue was untimely and
successive under R.C. 2953.21(A): it was Johnson’s third petition for
postconviction relief under R.C. 2953.21, and it was filed outside the statutory
deadline following the filing of the trial-court transcript in Johnson’s direct appeal
of his convictions. Accordingly, the trial court had no jurisdiction to consider the
petition unless (1) Johnson established that he was unavoidably prevented from
discovering Keith’s recantation before the statutory deadline and (2) he showed “by
clear and convincing evidence that, but for constitutional error at trial,” he would
not have been convicted, R.C. 2953.23(A)(1). A petitioner like Johnson must
satisfy both of those requirements before the trial court may entertain his petition;
Johnson satisfied neither.
C. The burden is on Johnson to establish that he was unavoidably prevented
from discovering Keith’s recantation before the deadline
{¶ 13} R.C. 2953.23 puts the onus on the petitioner to show that he was
unavoidably prevented from discovering the facts on which his petition relies.
R.C. 2953.23(A)(1)(a). But Johnson maintains that our recent decision in Bethel
shifted to the state the burden to demonstrate that the petitioner was capable of
2. A petitioner need not show that he was unavoidably prevented from discovering the facts on
which the petition is based if he establishes that “subsequent to the [statutory deadline] or to the
filing of an earlier petition, the United States Supreme Court recognized a new federal or state right
that applies retroactively to persons in the petitioner’s situation, and the petition asserts a claim
based on that right.” R.C. 2953.23(A)(1)(a). That exception does not apply here.
6
January Term, 2024
discovering the evidence sooner. Not so. Construing Bethel in that fashion not
only misreads that case’s holding but also turns R.C. 2953.23 on its head.
{¶ 14} In Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, at
¶ 2, the petitioner’s claims relied largely on the state’s failure to disclose a report
prior to trial. The petitioner alleged that under Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963), the state violated his due-process rights by
withholding evidence favorable to his defense. Bethel at ¶ 2, 11. We considered
the propriety of the Brady claim on two separate fronts: (1) whether res judicata
barred the claim, Bethel at ¶ 16-18, and (2) whether the petitioner was unavoidably
prevented from timely discovering the basis for his petition as required by
R.C. 2953.23, Bethel at ¶ 21-25.
{¶ 15} With respect to the res judicata question, we held that the state bore
the burden of proving that the petitioner could have raised the Brady claim in a
previous postconviction petition, because res judicata was invoked by the state.
Bethel at ¶ 17-18. After dispensing with the state’s res judicata argument, this court
considered the effect of the Brady claim under R.C. 2953.23’s “unavoidably
prevented from discovery of the facts” requirement. Bethel at ¶ 21-25.
{¶ 16} Prior to Bethel, Ohio courts typically required a postconviction
petitioner to “show that he was unaware of the evidence he [was] relying on and
that he could not have discovered the evidence by exercising reasonable diligence.”
Id. at ¶ 21. But we determined in Bethel that requiring the demonstration of
reasonably diligent attempts to discover Brady materials would violate the United
States Supreme Court’s pronouncement that “criminal defendants have no duty to
‘scavenge for hints of undisclosed Brady material.’ ” Bethel at ¶ 24, quoting Banks
v. Dretke, 540 U.S. 668, 695, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004). Thus, we
held that “when a defendant seeks to assert a Brady claim in an untimely or
successive petition for postconviction relief, the defendant satisfies the
‘unavoidably prevented’ requirement contained in R.C. 2953.23(A)(1)(a) by
7
SUPREME COURT OF OHIO
establishing that the prosecution suppressed the evidence on which the defendant
relies.” Id. at ¶ 25. Accord State v. McNeal, 169 Ohio St.3d 47, 2022-Ohio-2703,
201 N.E.3d 861, ¶ 17 (“a defendant may satisfy the ‘unavoidably prevented’
requirement contained in Crim.R. 33(B) by establishing that the prosecution
suppressed the evidence on which the defendant would rely”).3
{¶ 17} Properly understood, Bethel reconciles the burden of proof in
R.C. 2953.23(A)(1) with the dictates of Brady. What Bethel does not do is
eliminate a petitioner’s burden of proof. Nor could this court have done so. The
General Assembly chose to place the burden of proof squarely on the shoulders of
postconviction petitioners such as Johnson by enacting the requirement that “the
petitioner show[] that the petitioner was unavoidably prevented from discovery of
the facts upon which the petitioner must rely,” R.C. 2953.23(A)(1)(a).
{¶ 18} Holding as Johnson would have us do—that the petitioner does not
bear that burden—would transmogrify the statute. Thus, we reaffirm today that a
petitioner who files an untimely or successive petition for postconviction relief
under R.C. 2953.21 bears the burden of showing that he was unavoidably prevented
from discovering the evidence on which the petition relies. A petitioner may make
the required showing either by establishing a violation under Brady, 373 U.S. 83,
83 S.Ct. 1194, 10 L.Ed.2d 215, or by demonstrating that he was previously unaware
of the evidence on which the petition relies and could not have discovered it by
exercising reasonable diligence.
1. Johnson did not meet his burden
{¶ 19} Although Johnson contends that Keith’s trial testimony identifying
him as the assailant was the result of police pressure, he did not raise a Brady
3. Crim.R. 33(B), which governs untimely motions for a new trial, likewise requires the defendant
to prove that he was “unavoidably prevented” from discovering the evidence on which he relies.
“ ‘The “unavoidably prevented” requirement in Crim.R. 33(B) mirrors the “unavoidably prevented”
requirement in R.C. 2953.23(A)(1).’ ” Bethel at ¶ 59, quoting State v. Barnes, 5th Dist. Muskingum
No. CT2017-0092, 2018-Ohio-1585, ¶ 28.
8
January Term, 2024
claim in his petition for postconviction relief. So to carry his burden under
R.C. 2953.23(A)(1), he was instead required to submit evidence showing that he
was unavoidably prevented from discovering that Keith had doubts about his
identification of him. The next question, then, is whether a recanting witness’s
affidavit dated after the postconviction-petition deadline has passed is sufficient to
satisfy that standard.
{¶ 20} The parties propose very different answers to this question. Johnson
contends that the bare fact that Keith’s recantation affidavit was executed in 2020—
long after Johnson’s postconviction-petition deadline expired—suffices. Details
such as the reasons for and the timing of the affidavit could, according to Johnson,
be explored during a hearing on the petition.
{¶ 21} Johnson’s preferred approach is consonant with a line of Ohio
appellate-court cases holding that an affidavit recanting testimony is, by itself,
sufficient to establish that the petitioner was unavoidably prevented from timely
submitting the evidence when the affidavit was obtained after the deadline. See,
e.g., State v. Alexander, 11th Dist. Trumbull No. 2011-T-0120, 2012-Ohio-4468,
¶ 21 (requiring a hearing on a motion for a new trial “whenever an appellant
produces a recanting affidavit after [the deadline for filing the motion]”); State v.
Wright, 67 Ohio App.3d 827, 831, 588 N.E.2d 930 (2d Dist.1990) (holding, in the
context of a motion for a new trial, that the defendant was unavoidably prevented
from discovering the evidence relied on, based on recanting witness’s statement
that the defendant “was neither aware of the contents of the affidavit nor aware of
the fact that [the witness] would be willing to give such an affidavit, until * * * the
date of the * * * affidavit”).
{¶ 22} Other Ohio courts look beyond the date of the affidavit, however. In
those cases, the courts held that an affidavit’s being dated beyond the deadline is
not prima facie evidence that the petitioner was unavoidably prevented from timely
discovering the recantation. See, e.g., State v. Bennett, 4th Dist. Scioto No.
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SUPREME COURT OF OHIO
16CA3765, 2017-Ohio-574, ¶ 15 (determining, in the context of a motion for a new
trial, that “[t]he date upon which [the defendant] became aware of [the recanting
witness’s] statement is not prima facie evidence that [the defendant] was
unavoidably prevented from discovering [the] statement during [the period for
filing a motion for a new trial]”); State v. Thornton, 5th Dist. Muskingum No.
CT2016-0041, 2017-Ohio-637, ¶ 54 (holding, in the context of a motion for a new
trial, that untimely affidavits “that fail to offer a sufficient explanation as to why
evidence could not have been obtained sooner are inadequate to show that the
movant was unavoidably prevented from obtaining the evidence within the
prescribed time”). It is this latter rule that the state urges us to adopt.
{¶ 23} Which approach is correct? The answer lies in the words of R.C.
2953.23. “When the meaning of a statute is clear and definite, it must be applied
as written,” State v. Bertram, __ Ohio St.3d __, 2023-Ohio-1456, __ N.E.3d __,
¶ 11, because “ ‘an unambiguous statute means what it says,’ ” State v. Waddell, 71
Ohio St.3d 630, 631, 646 N.E.2d 821 (1995), quoting Hakim v. Kosydar, 49 Ohio
St.2d 161, 164, 359 N.E.2d 1371 (1977). Words may not be added or deleted
according to judicial whimsy. Waddell at 631.
{¶ 24} Here, R.C. 2953.23(A)(1)(a) requires a petitioner to show that he
was “unavoidably prevented”—not merely “prevented”—from discovering the
facts on which he would rely. (Emphasis added.) “Unavoidable” means “not
avoidable” or “inevitable.” Merriam-Webster’s Collegiate Dictionary 1360 (11th
Ed.2003). And something is “inevitable” if it is “incapable of being avoided or
evaded.” Id. at 638. Keeping in mind that R.C. 2953.23 means what it says, a
petitioner filing an untimely postconviction petition must show that any delay in
discovering the facts undergirding the petition was “incapable of being avoided or
evaded,” Merriam-Webster’s Collegiate Dictionary at 638.
{¶ 25} The light that an affidavit’s date sheds on that issue is dim, at best.
A date merely reveals when the affidavit was executed or provided, not when the
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January Term, 2024
testimony it contains became available. Without an explanation of how the
recantation was discovered, the information essential to the R.C. 2953.23 inquiry
remains cloaked in darkness. It is this type of information that bears on the
petitioner’s ability to avoid delay in discovering recanted testimony.
{¶ 26} Johnson argues that questions concerning efforts to discover a
recantation and the timing of a supporting affidavit should be explored at a hearing.
But R.C. 2953.23 dictates otherwise. Remember, the petitioner bears the burden of
proving that he was unavoidably prevented from discovering the evidence on which
he must rely, before the trial court even has subject-matter jurisdiction to consider
the petition. See R.C. 2953.23(A)(1); Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-
4744, 121 N.E.3d 351, at ¶ 24, 36, 38. Therefore, it is the petitioner’s duty to
present sufficient evidence to carry that burden at the time he files the petition. And
there is no practical reason why a hearing might be necessary for the petitioner to
satisfy this burden. If testimony can be elicited at a hearing, it can be attested to in
an affidavit. We therefore reject Johnson’s argument that regardless of the
circumstances, a hearing is required whenever a petitioner produces an affidavit
from a witness recanting the witness’s testimony.
{¶ 27} Accepting an affidavit’s date as prima facie evidence satisfying the
strictures of R.C. 2953.23(A)(1)(a) would effectively eliminate the word
“unavoidably” from the statute. Thus, we hold that R.C. 2953.23(A)(1)(a) requires
a petitioner to submit evidence of specific facts beyond the supporting affidavit’s
date to explain why the petitioner was unable to timely obtain an affidavit from the
recanting witness.
{¶ 28} Turning to the facts of this case, we conclude that Johnson did not
carry his burden under R.C. 2953.23. The only evidentiary support for Johnson’s
petition was Keith’s affidavit. Missing from Keith’s affidavit is any information
about when and how he first notified Johnson of his misgivings about his
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identification of Johnson. The affidavit sheds no light on whether Keith contacted
Johnson or vice versa or when such contact occurred.
{¶ 29} In his petition, Johnson stated in conclusory fashion that the
information in Keith’s affidavit “was not available to [him] until this time” and
“was not discoverable by him until Keith voluntarily presented it.” But Keith’s
affidavit does not state, or even imply, this. On the contrary, Keith claims in his
affidavit that he had “spent the past seven years thinking about [his] testimony” and
that he had daily “felt an incredible weight on [his] shoulders” because he believed
he did not identify the right person. In fact, Keith’s affidavit provides no
information about whether Johnson had been prevented, unavoidably or otherwise,
from timely discovering Keith’s uncertainties about his identification of Johnson.
{¶ 30} Because Johnson has not shown that he was unavoidably prevented
from discovering Keith’s recantation within the statutory deadline, the trial court
lacked jurisdiction to consider his petition.4
2. Johnson has not shown constitutional error
{¶ 31} Johnson’s petition fails for a second reason. In addition to satisfying
R.C. 2953.23(A)(1)(a), Johnson needed to show by clear and convincing evidence
that “constitutional error at trial” was the “but for” cause of his convictions, R.C.
2953.23(A)(1)(b). He did not.
{¶ 32} Here, Johnson claims that he satisfied this requirement by showing
three types of constitutional violations: perjured testimony, police coercion, and a
violation under Brady, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. Only one of
4. It is questionable whether Johnson would be entitled to move forward with his petition even if it
were timely and not successive such that R.C. 2953.23’s jurisdictional bar were not an issue. He
petitioned under R.C. 2953.21(A)(1)(a)(i), which allows “[a]ny person who has been convicted of
a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or
infringement of the person’s rights as to render the judgment void or voidable under the Ohio
Constitution or the Constitution of the United States” to file a petition. As we discuss below,
Johnson did not sufficiently claim in his petition that the state had denied or infringed on any of his
constitutional rights.
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these theories—perjury—was arguably raised in the trial court: Johnson argued in
his petition that he was denied his rights to due process and a fair trial because Keith
allegedly committed perjury. Coercion was not mentioned in Johnson’s petition.5
Neither was Brady. So Johnson has forfeited those arguments. See State v. Rogers,
143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21 (“forfeiture is the failure
to timely assert a right or object to an error”).6
{¶ 33} Once Johnson’s two forfeited arguments—police coercion and
Brady violation—are disregarded, we are left with Keith’s purported perjury as the
sole alleged constitutional error. But perjury is not constitutional error. Both this
court and the United States Court of Appeals for the Sixth Circuit have determined
that the state’s “ ‘knowing use of false or perjured testimony’ ” may constitute a
denial of due process. (Emphasis added.) State v. Iacona, 93 Ohio St.3d 83, 97,
752 N.E.2d 937 (2001) (lead opinion), quoting United States v. Lochmondy, 890
F.2d 817, 822 (6th Cir.1989). The United States Supreme Court has come to the
same conclusion. See United States v. Bagley, 473 U.S. 667, 678-679, 105 S.Ct.
3375, 87 L.Ed.2d 481 (1985). Unwitting use of perjured testimony is a different
story.
{¶ 34} Neither this court nor the United States Supreme Court has held that
perjured testimony offered without the state’s knowledge is a deprivation of due
5. Johnson suggested in his petition that the police pressured Keith. But pressure is not inherently
coercive. See State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 71-76
(threatening to arrest a family member not coercive if such an arrest could be lawfully made);
Morgan v. Bennett, 204 F.3d 360, 371 (2d Cir.2000) (“pressure merely to testify does not indicate
pressure to falsify”). Not only did Johnson fail to assert that Keith had been coerced, he also failed
to allege any facts implying coercion.
6. The dissenting opinion takes the position that these arguments were not forfeited. The case it
cites in support of that position—State v. Bunch, 171 Ohio St.3d 775, 2022-Ohio-4723, 220 N.E.3d
773—is inapposite. In that case, the question was whether Bunch had “provided sufficient operative
facts to warrant an evidentiary hearing regarding his claim that he was prejudiced as a result of
counsel’s deficient performance,” id. at ¶ 50, not whether he had forfeited the claim. Bunch had
clearly raised in his postconviction petition the issue of his counsel’s ineffectiveness. See id. at ¶
14.
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process. The late Justice Scalia once observed that “the Ninth Circuit * * *
stretched the Constitution” when it held that “the use of * * * false testimony
violated the Fourteenth Amendment’s Due Process Clause, whether or not the
prosecution knew of its falsity. We have never held that, and are unlikely ever to
do so.” (Citation omitted.) Cash v. Maxwell, 565 U.S. 1138, 1145, 132 S.Ct. 611,
181 L.Ed.2d 785 (2012) (Scalia, J., dissenting from the denial of certiorari).
Likewise, we decline to do so today.
III. CONCLUSION
{¶ 35} The trial court could have no jurisdiction to entertain Johnson’s
untimely, successive petition for postconviction relief unless Johnson established
two things: (1) that he was unavoidably prevented from timely discovering that
Keith had doubts about his trial testimony and (2) that he would not have been
convicted but for constitutional error at trial. See R.C. 2953.23(A)(1). He
established neither. Nothing in the record details Johnson’s efforts, if there were
any, to timely obtain an affidavit from Keith, and he has provided no explanation
why such efforts would have been unavailing. And a conviction based on false
testimony is not a constitutional violation unless the state had knowledge of the
testimony’s falsity. We therefore affirm the judgment of the Eighth District Court
of Appeals.
Judgment affirmed.
KENNEDY, C.J., and FISCHER and DEWINE, JJ., concur.
DONNELLY, J., dissents, with an opinion joined by STEWART and BRUNNER,
JJ.
_________________
DONNELLY, J., dissenting.
{¶ 36} Because appellant, Eric Johnson, articulated sufficient operative
facts to warrant a hearing on his November 2020 petition for postconviction relief,
I dissent.
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I. BACKGROUND
{¶ 37} In February 2013, a jury determined that Johnson was the person
who robbed and repeatedly shot James Keith on August 26, 2012. According to
the Eighth District Court of Appeals’ description of the evidence submitted at
Johnson’s trial,7 the identification of Johnson as the attacker hinged on Keith’s
eyewitness-identification testimony; no physical evidence linked Johnson to the
attack, and the remaining witnesses at trial were first responders and the police
detectives who became involved during the aftermath of the attack. See State v.
Johnson, 8th Dist. Cuyahoga No. 99822, 2014-Ohio-494, ¶ 5-14, 52. Johnson has
maintained that he is innocent and that Keith incorrectly identified him as the
attacker.
{¶ 38} In December 2013, Johnson filed his first petition for postconviction
relief in this case. See State v. Johnson, 8th Dist. Cuyahoga No. 101993, 2015-
Ohio-1649, ¶ 4. According to the Eighth District, Johnson asserted in that petition
that his trial counsel had been ineffective for failing to investigate an alibi witness
and for failing to adequately communicate a midtrial plea offer to Johnson. Id.
Johnson supported that petition with an affidavit from his trial counsel. Id. In
January 2014, the trial court denied the petition without a hearing. Id. at ¶ 1, 6. In
February 2014, Johnson filed a supplemental petition. Id. at ¶ 6. According to
Johnson’s recitation of the facts in his merit brief here, the supplemental petition
included an affidavit from Johnson’s codefendant, John Alexander, that supported
Johnson’s claim of innocence. The trial court dismissed the supplemental petition.
Id. The Eighth District affirmed. Id. at ¶ 26.
7. For reasons that are unclear, the full record of Johnson’s trial-court proceedings was not
transmitted on appeal. The portion of the trial-court record that was transmitted includes trial-court
docket Nos. 69 through 82, covering docket items from January 22, 2018, through March 8, 2021,
but it does not include any materials concerning Johnson’s trial or his first petition for postconviction
relief. Accordingly, and unfortunately, my understanding of the case is constrained to the
representations of the parties and the court of appeals.
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{¶ 39} The postconviction petition at issue here was filed in November
2020 and included an August 2020 affidavit from Keith, in which he stated:
2. I am the victim in CR567736 State of Ohio v. Eric Johnson.
3. As a result of this incident I was shot nine times, spent seven
months in the hospital, was in a coma for a month, and then had to
learn to walk again.
4. My only recollection of my assailant is that he was an African
American man with gold teeth. I don’t have much of a memory of
the night of the incident after being placed in the ambulance.
5. I testified at trial that Eric Johnson was the person who robbed
and assaulted me.
6. However, I felt pressured by [an investigating detective] to testify
against Mr. Johnson even though I wasn’t sure he was the person
who committed these crimes against me.
7. I have spent the past seven years thinking about this case and my
testimony. On a daily basis I have felt an incredible weight on my
shoulders because I believe I have identified the wrong person as
having committed the crimes against me.
Johnson also asserted in the 2020 petition that the foregoing recantation evidence
was unavailable to him before Keith recently came forward and offered the
recantation. The trial court summarily denied the petition without a hearing.
II. ANALYSIS
{¶ 40} The November 2020 petition for postconviction relief was untimely
and successive under the applicable versions of R.C. 2953.21 and 2953.23. To
ultimately prevail on his petition, Johnson would need to provide clear and
convincing evidence that a constitutional error occurred at his 2013 trial and that
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but for that error, no reasonable fact-finder would have found him guilty. See
R.C. 2953.23(A)(1)(b). Johnson would also need to establish that he was
“unavoidably prevented,” R.C. 2953.23(A)(1)(a), from discovering the evidence
supporting his claim prior to December 2, 2013, which was 180 days after the
transcript of his trial was filed in the court of appeals in his direct appeal of his
convictions. See id.; former R.C. 2953.21(A)(2), 2010 Sub.S.B. No. 77. But we
are not concerned at this point with whether Johnson will ultimately prevail on his
petition; we are concerned only with whether the trial court should have held a
hearing on the petition. To merit a hearing, Johnson simply needed to produce
evidence establishing a prima facie claim that he was unavoidably prevented from
timely discovering the evidence supporting his petition and that the new evidence
presents a cognizable claim of constitutional error. See State v. Bethel, 167 Ohio
St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, ¶ 20; State v. Hatton, 169 Ohio
St.3d 446, 2022-Ohio-3991, 205 N.E.3d 513, ¶ 37. Viewing Johnson’s petition and
supporting evidence under the facts and circumstances of this case, I believe a
hearing on the petition is merited.
A. “Unavoidably Prevented”
{¶ 41} The majority finds that Johnson provided no proof that he was
unavoidably prevented from discovering Keith’s recantation before the statutory
postconviction-petition deadline apart from the fact that Keith’s recantation
affidavit is dated after the deadline. The majority concludes that the date of a
recantation affidavit is not, by itself, prima facie evidence satisfying the
“unavoidably prevented from discovery of the facts” requirement under
R.C. 2953.23(A)(1)(a). I might agree with the majority’s conclusion under other
circumstances, such as those in State v. Bennett, 4th Dist. Scioto No. 16CA3765,
2017-Ohio-574, one of the cases relied on by the majority. But I cannot agree with
the majority’s findings or conclusions under the circumstances of this case.
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{¶ 42} In Bennett, which involved an untimely motion for a new trial, the
recanting witness was the defendant’s brother, id. at ¶ 4. More than ten years before
the new-trial matter was filed, the defendant’s brother testified at the defendant’s
trial that the defendant had made an admission implying that he had caused the
victim’s death, contradicting the defendant’s testimony that the death had been
accidental, State v. Bennett, 4th Dist. Scioto No. 05CA2997, 2006-Ohio-2757, ¶ 7-
8. The defendant and his brother had been in phone contact while the defendant
was in jail. Bennett, 2017-Ohio-574, at ¶ 6. Given that specific context, the
defendant understandably could not establish a prima facie case under Crim.R.
33(B) (and likewise could not have established a prima facie case under
R.C. 2953.23(A)(1)(a)) by baldly claiming that he had been unavoidably prevented
from discovering his brother’s recantation.
{¶ 43} By contrast, the recanting witness in this case is the victim himself—
Keith. The parties state in their briefs that Keith testified at Johnson’s trial that he
had seen Johnson around town before the attack and had known him only as “E.”
Thus, it appears that Johnson and Keith had not been well acquainted. Under the
circumstances of this case, which include a victim who had suffered a brutally
violent attack, the victim’s recantation of identification testimony that had
otherwise ensured Johnson’s imprisonment for the attack, and the fact that Johnson
and the victim had been essentially strangers to each other, no more evidence is
necessary to establish a prima facie claim that Johnson was unavoidably prevented
from discovering Keith’s recantation sooner.
{¶ 44} The majority holds that more evidence was necessary to sustain
Johnson’s claim that he was unavoidably prevented from discovering Keith’s
recantation sooner, but it articulates no standard in that regard. What more must be
shown? Must the defendant spell out in an affidavit that he had not been in close
contact with the recanting victim and that he adhered to the truth that it is a terrible
idea to go around harassing the victim after trial? What more do we need besides
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Johnson’s claim that Keith only “recently” decided to “come forward recanting his
identification” testimony and Keith’s statement that he came forward to recant after
spending years thinking about the case and feeling “an incredible weight on [his]
shoulders” about his testimony? If a person is convicted of a crime based on
eyewitness-identification testimony and that person is actually innocent, the person
already knows that one of two things happened: (1) either the witness lied or (2)
the witness was mistaken. When the crucible of cross-examination and the
penalties for perjury were not enough to convince a witness to testify truthfully and
accurately at trial, it is unreasonable to expect the defendant to extract a different
result from the witness after trial.
{¶ 45} Because the circumstances of Keith’s recantation relevant to
R.C. 2953.23(A)(1)(a) were already obvious, an affidavit articulating such obvious
facts and circumstances would be superfluous, and requiring more of defendants
like Johnson could be dangerous. Doing so could be dangerous to the victim’s
safety and peace of mind. It could be dangerous to the defendant, who could face
accusations of retaliation or intimidation of a witness. And it could be dangerous
to the defendant’s claim of innocence, given that a badgered recanting witness
would be seen as far less credible than a witness who recanted on his or her own
accord.
{¶ 46} Accordingly, I would hold that Johnson’s November 2020 petition
established a prima facie claim that he was unavoidably prevented from timely
discovering Keith’s recantation sooner and that the trial court erred by not holding
a hearing on the petition.
B. “Constitutional Error”
{¶ 47} Johnson argues that he adequately raised a cognizable claim of
constitutional error through Keith’s affidavit, which he says establishes that Keith
committed perjury at his trial and that the perjured testimony was a result of police
coercion and pressure to misidentify Johnson as the attacker, and he argues that the
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state’s failure to disclose that coercion violated the Supreme Court of the United
States’s holding in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963). The majority rejects Johnson’s arguments primarily by finding that
Johnson failed to raise any argument regarding police coercion or Brady in his
petition in the trial court. While I recognize that the legal arguments in Johnson’s
petition left a lot to be desired, I disagree that Johnson’s claims were entirely
forfeited.
{¶ 48} As long as Johnson’s petition alleged sufficient operative facts that,
if true, establish that a constitutional violation at his trial caused his convictions, he
is entitled to a hearing on the petition. See State v. Bunch, 171 Ohio St.3d 775,
2022-Ohio-4723, 220 N.E.3d 773, ¶ 45-50. I believe that sufficient operative facts
were presented through Keith’s averment that “[he] testified at trial that Eric
Johnson was the person who robbed and assaulted [him]. * * * However, [he] felt
pressured by [an investigating detective] to testify against Mr. Johnson even though
[he] wasn’t sure [Johnson] was the person who committed these crimes against
[him].”
{¶ 49} Keith did not merely say that he was pressured to testify in general.
He said that he was pressured to testify that Johnson was the person who had
attacked him, “even though” he had been unsure about the identity of his attacker.
The most reasonable reading of this averment is that the detective knew that Keith
was unsure of his attacker’s identity but pressured Keith to provide identification
testimony anyway. Regardless of whether or not Keith meant to indicate that the
state had instructed him to commit perjury, he indicated at the very least that he had
expressed uncertainty to the police about the identity of his attacker. Evidence of
such expressions to the police would have been favorable and material to Johnson’s
defense, given that Johnson’s convictions hinged on Keith’s identification
testimony, and the state’s failure to disclose such favorable, material evidence to
Johnson would certainly violate Brady. Regardless of whether Johnson’s counsel
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specifically mentioned Brady in Johnson’s petition, the petition presented sufficient
operative facts to merit a hearing.
III. CONCLUSION
{¶ 50} I have emphasized that “[w]hen postconviction petitioners seeking
new trials provide evidence outside the trial-court record that potentially
undermines the theory of guilt that was used to convict them, courts should hold
hearings on the petitions as a regular practice.” Hatton, 169 Ohio St.3d 446, 2022-
Ohio-3991, 205 N.E.3d 513, at ¶ 43 (Donnelly, J., concurring); see also Bunch at
¶ 51; Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, at ¶ 72
(Donnelly, J., dissenting); State v. Miller, __ Ohio St.3d __, 2023-Ohio-3448, __
N.E.3d __, ¶ 62 (Donnelly, J., dissenting).
{¶ 51} Johnson’s November 2020 petition for postconviction relief
articulates operative facts showing that the eyewitness-identification evidence that
was crucial to the determination of Johnson’s guilt at trial may have been false. I
personally think that this conclusion alone merits closer review of Johnson’s
petition, given that mistaken eyewitness identifications are thought to be
“ ‘responsible for more wrongful convictions than all other causes combined,’ ”
United States v. Brownlee, 454 F.3d 131, 142 (3d Cir.2006), quoting A. Daniel
Yarmey, Expert Testimony: Does Eyewitness Memory Research Have Probative
Value for the Courts?, 42 Canadian Psychol. 92, 93 (May 2001). But regardless,
Johnson’s petition also provided evidence establishing a prima facie claim that he
was unavoidably prevented from discovering Keith’s recantation prior to R.C.
2953.21’s deadline, and the facts established in the recantation affidavit present a
cognizable claim that Johnson’s convictions were predicated on the state’s
violations of his constitutional rights.
{¶ 52} I would reverse the judgment of the Eighth District Court of Appeals
and remand the cause to the trial court with an order for it to proceed to an
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evidentiary hearing on Johnson’s November 2020 petition for postconviction relief.
Accordingly, I dissent.
STEWART and BRUNNER, JJ., concur in the foregoing opinion.
_________________
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Gregory J. Ochocki and Tasha L. Forchione, Assistant Prosecuting Attorneys, for
appellee.
Joseph V. Pagano, for appellant.
Dave Yost, Attorney General, Michael J. Hendershot, Chief Deputy
Solicitor General, and Samuel C. Peterson and Jana M. Bosch, Deputy Solicitors
General, urging affirmance for amicus curiae Ohio Attorney General Dave Yost.
Cullen Sweeney, Cuyahoga County Public Defender, and John T. Martin
and Erika B. Cunliffe, Assistant Public Defenders, urging reversal for amicus curiae
Cuyahoga County Public Defender.
_________________
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