[Cite as State v. Jackson, 2020-Ohio-4015.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-19-63
v.
CLEVELAND R. JACKSON, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR 2002 0011
Judgment Affirmed
Date of Decision: August 10, 2020
APPEARANCES:
Dale A. Baich, Kelle A. Andrews, and Charlotte G. Merrill
for Appellant
Jana E. Emerick for Appellee
Case No. 1-19-63
PRESTON, J.
{¶1} Defendant-appellant, Cleveland R. Jackson (“Jackson”), appeals the
September 26, 2019 judgment of the Allen County Court of Common Pleas rejecting
his petition for post-conviction relief. For the reasons that follow, we affirm.
{¶2} This matter originated with Jackson’s 2002 conviction and death
sentence for the murder of Leneshia R. Williams (“Williams”). On January 3, 2002,
Jackson and his half-brother, Jeronique Cunningham, robbed a group of eight people
at gunpoint and then fired their weapons into the group. Three-year-old Jayla Grant
(“Grant”) and 17-year-old Williams were shot and died as a result of their injuries.
{¶3} On January 10, 2002, the Allen County Grand Jury indicted Jackson on
nine counts: Counts One and Two of aggravated murder in violation of R.C.
2903.01(B); Count Three of aggravated robbery in violation of R.C. 2911.01(A)(1);
and Counts Four through Nine of attempted aggravated murder in violation of R.C.
2923.02 and R.C. 2903.01(B). (Doc. No. 1). Counts One and Two both contained
death-penalty specifications under R.C. 2929.04(A)(5) and R.C. 2929.04(A)(7).
(Id.). Counts One through Nine also contained firearm specifications under R.C.
2941.145(A). (Id.).
{¶4} A jury trial commenced on July 16, 2002. (Doc. No. 313). On July 25,
2002, the jury found Jackson guilty on all counts. (Id.). Additionally, the jury found
that the State proved all of the specifications, including the death-penalty
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specifications, beyond a reasonable doubt. (Id.). On July 26, 2002, the trial court
filed its judgment entry of conviction. (Id.).
{¶5} A mitigation hearing was held on July 29, 2002. (Doc. No. 344). For
the purposes of sentencing, the trial court instructed the jury to consider only
whether each aggravated murder was part of a course of conduct involving the
purposeful killing of or attempt to kill two or more persons under R.C.
2929.04(A)(5), thereby removing the aggravating factor under R.C. 2929.04(A)(7)
from the jury’s consideration. (Id.). On July 30, 2002, the trial court returned its
recommendation that Jackson be sentenced to death for Counts One and Two. (Id.).
{¶6} At the sentencing hearing on August 5, 2002, the trial court accepted
the jury’s recommendation and sentenced Jackson to death for the aggravated
murders of Grant and Williams, Counts One and Two, respectively. (Doc. Nos.
344, 345). The trial court also imposed prison terms with respect to Counts Three
through Nine and the related firearm specification in Count Three. (Doc. No. 345).
That same day, the trial court filed its sentencing opinion and its judgment entry of
sentence. (Doc. Nos. 344, 345).
{¶7} Jackson perfected a direct appeal as of right to the Supreme Court of
Ohio. In State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, the Supreme Court
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of Ohio affirmed Jackson’s convictions and sentences on all non-capital offenses.1
Id. at ¶ 23. With respect to the capital offenses, the Supreme Court of Ohio affirmed
Jackson’s convictions for the aggravated murders of Grant and Williams and
affirmed the death sentence for the aggravated murder of Williams. Id. at ¶ 23, 25.
However, the court found that the trial court abused its discretion in denying
Jackson’s request to inform prospective jurors that one of the murder victims was a
young child. Id. at ¶ 24. Accordingly, the Supreme Court of Ohio vacated Jackson’s
death sentence for the murder of Grant and remanded the cause to the trial court for
the purpose of resentencing on that count only. Id. Accordingly, on January 8,
2007, the trial court held a resentencing hearing and sentenced Jackson to life
imprisonment without parole with respect to the murder of Grant. (Doc. No. 443).
Jackson filed an application to reopen his direct appeal, which the Supreme Court
of Ohio denied. State v. Jackson, 110 Ohio St.3d 1435, 2006-Ohio-3862.
Subsequently, the Supreme Court of the United States denied Jackson’s petition for
writ of certiorari. Jackson v. Ohio, 548 U.S. 912, 126 S.Ct. 2940 (2006).
{¶8} On August 13, 2003, while his direct appeal was pending, Jackson filed
a petition for postconviction relief, which the trial court denied. (Doc. Nos. 410,
426). This court affirmed the trial court’s decision on appeal. State v. Jackson, 3d
1
In Jackson’s direct appeal from his convictions and sentence, the Supreme Court of Ohio recited much of
the factual background of this case, and we will not duplicate those efforts here. See State v. Jackson, 107
Ohio St.3d 53, 2005-Ohio-5981.
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Dist. Allen No. 1-04-31, 2004-Ohio-5350, ¶ 25. The Supreme Court of Ohio
declined further review. State v. Jackson, 108 Ohio St.3d 1476, 2006-Ohio-665.
{¶9} On June 26, 2007, Jackson filed a petition for a writ of habeas corpus
with the United States District Court for the Northern District of Ohio raising twenty
claims. Jackson v. Houk, N.D.Ohio No. 3:07CV0400, 2008 WL 1946790 (May 1,
2008). The district court denied Jackson’s claims and declined to grant a certificate
of appealability on any of the claims. Id. at *82. The United States Court of Appeals
for the Sixth Circuit affirmed the district court’s decision. Jackson v. Houk, 687
F.3d 723 (6th Cir.2012). On February 19, 2013, the Supreme Court of the United
States declined Jackson’s petition for writ of certiorari. Jackson v. Houk, 568 U.S.
1164, 133 S.Ct. 1243.
{¶10} On September 4, 2019, Jackson filed a second petition for
postconviction relief in the trial court. (Doc. No. 456). In his petition for
postconviction relief, Jackson argued that his death sentence is void or voidable
because he is intellectually disabled and ineligible for execution. (Id.). In his
petition for postconviction relief, Jackson acknowledged that he was filing outside
the timeframe prescribed by R.C. 2953.21(A) and that it was his second petition for
postconviction relief. (Id.). Nevertheless, Jackson argued that his petition met the
exceptions outlined in R.C. 2953.23, and he argued that the trial court should
therefore consider the merits of his claim. (Id.). On September 25, 2019, the State
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filed its response and motion to dismiss Jackson’s petition for postconviction relief.
(Doc. No. 457). On September 26, 2019, the trial court filed its judgment entry
denying Jackson’s petition for postconviction relief without holding an evidentiary
hearing. (Doc. No. 458).
{¶11} On October 11, 2019, Jackson filed his notice of appeal. (Doc. No.
461). He raises one assignment of error for our review.
Assignment of Error
The trial court improperly failed to grant jurisdiction under R.C.
2953.23 and review Appellant Jackson’s claims and evidence
proving that he is intellectually disabled and ineligible for
execution. (Dkt. 458.) It improperly found that R.C.
2953.23(A)(1) does not apply, improperly applied res judicata,
and failed to afford Jackson due process in the consideration of
his claims and evidence. This assignment of error relates to
Issues for Review 1-4.
{¶12} In his assignment of error, Jackson argues that the trial court erred in
denying his petition for postconviction relief without a hearing on the grounds that
it was both time barred and barred by res judicata.
{¶13} “R.C. 2953.21 governs petitions for post-conviction relief.” State v.
Wine, 3d Dist. Auglaize No. 2-15-07, 2015-Ohio-4726, ¶ 10, citing State v. Kinstle,
3d Dist. Allen No. 1-12-32, 2013-Ohio-850, ¶ 10. The statute sets forth who may
petition for postconviction relief:
Any person who has been convicted of a criminal offense * * * and
who claims that there was such a denial or infringement of the
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person’s rights as to render the judgment void or voidable under the
Ohio Constitution or the Constitution of the United States * * * may
file a petition in the court that imposed sentence, stating the grounds
for relief relied upon, and asking the court to vacate or set aside the
judgment or sentence or to grant other appropriate relief. The
petitioner may file a supporting affidavit and other documentary
evidence in support of the claim for relief.
R.C. 2953.21(A)(1)(a). The statute sets forth the time requirements for filing a
petition for postconviction relief and provides, in relevant part,
a petition under division (A)(1) of this section 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 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. If no appeal is taken, except as otherwise provided in
section 2953.23 of the Revised Code, the petition shall be filed no
later than three hundred sixty-five days after the expiration of the time
for filing the appeal.
R.C. 2953.21(A)(2). “‘A trial court lacks jurisdiction to entertain an untimely or
successive petition for postconviction relief unless the petitioner establishes that one
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of the exceptions in R.C. 2953.23(A) applies.’” State v. Cunningham, 3d Dist. Allen
No. 1-15-61, 2016-Ohio-3106, ¶ 13, quoting State v. Chavis, 10th Dist. Franklin
No. 15AP-557, 2015-Ohio-5549, ¶ 14, citing State v. Campbell, 10th Dist. Franklin
No. 12AP-109, 2012-Ohio-5195, ¶ 9. “Therefore, if the petition has been untimely
filed, the trial court cannot consider the substantive merits of the petition and must
summarily dismiss it without addressing the merits of the petition.” State v.
Unsworth, 6th Dist. Lucas No. L-14-1238, 2015-Ohio-3197, ¶ 16, citing State v.
Flower, 7th Dist. Mahoning No. 14 MA 148, 2015-Ohio-2335, ¶ 12 and State v.
Rodriguez, 6th Dist. Wood No. WD-14-075, 2015-Ohio-562, ¶ 6.
{¶14} However, as indicated, an exception to the jurisdictional time limit is
contained in R.C. 2953.23(A), which states as follows:
(A) Whether a hearing is or is not held on a petition filed pursuant to
section 2953.21 of the Revised Code, a court may not entertain a
petition filed after the expiration of the period prescribed in division
(A) of that section or a second petition or successive petitions for
similar relief on behalf of a petitioner unless division (A)(1) or (2) of
this section applies:
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon which the petitioner must
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rely to present the claim for relief, or, subsequent to the period
prescribed in division (A)(2) of section 2953.21 of the Revised Code
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.
(b) The petitioner shows by clear and convincing evidence that, but
for constitutional error at trial, no reasonable factfinder would have
found the petitioner guilty of the offense of which the petitioner was
convicted or, if the claim challenges a sentence of death that, but for
constitutional error at the sentencing hearing, no reasonable factfinder
would have found the petitioner eligible for the death sentence.
R.C. 2953.23(A).
{¶15} Once a court has determined that a petition is untimely and no
exception applies, no further inquiry into the merits of the case is necessary. See
State v. Morgan, 3d Dist. Shelby No. 17-04-11, 2005-Ohio-427, ¶ 6, citing State v.
Beaver, 131 Ohio App.3d 458 (11th Dist.1998). Trial courts should dismiss
untimely postconviction petitions for lack of jurisdiction; nevertheless, a trial court
does not commit reversible error by denying an untimely postconviction petition.
State v. Hatfield, 10th Dist. Franklin No. 07AP-784, 2008-Ohio-1377, ¶ 8, citing
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State v. Hamilton, 10th Dist. Franklin No. 03AP-852, 2004-Ohio-2573, ¶ 9 and State
v. Hensley, 9th Dist. Lorain No. 03CA008293, 2003-Ohio-6457, ¶ 7. The trial court
determined that Jackson failed to establish an exception to the statutory time limit,
and we review that decision under an abuse of discretion standard. State v. Allen,
6th Dist. Lucas No. L-17-1085, 2017-Ohio-7976, ¶ 10, citing Unsworth, 2015-Ohio-
3197, at ¶ 16 and Rodriguez, 2015-Ohio-562, at ¶ 7.
{¶16} Jackson timely filed his initial petition for postconviction relief on
August 13, 2003. Thus, because this is Jackson’s second, and thus successive,
petition for postconviction relief, an exception set forth in R.C. 2953.23(A)(1)(a)
must apply for the trial court to have jurisdiction to entertain the merits of his
petition. Here, Jackson argues that both of the exceptions set forth in R.C.
2953.23(A)(1) apply to his successive petition for postconviction relief.
{¶17} First, we will address Jackson’s argument that he was unavoidably
prevented from discovery of the facts upon which he must rely to present his claim
for relief under R.C. 2953.23(A)(1)(a). Specifically, Jackson argues that he was
unavoidably prevented from discovering his intellectual disability. “A defendant is
‘unavoidably prevented’ from the discovery of facts if he had no knowledge of the
existence of those facts and could not have, in the exercise of reasonable diligence,
learned of their existence within the time specified for filing his petition for
postconviction relief.” Cunningham, 2016-Ohio-3106, at ¶ 19. “‘And the “facts”
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contemplated by R.C. 2953.23(A)(1)(a) are the historical facts of the case, which
occurred up to and including the time of conviction.’” Id., quoting State v. Ruark,
10th Dist. Franklin No. 15AP-142, 2015-Ohio-3206, ¶ 11, citing State v. Turner,
10th Dist. Franklin No. 06AP-876, 2007-Ohio-1468, ¶ 11. Further, the
postconviction statute requires that a petitioner be unavoidably prevented from
discovering facts, not the law. State v. Clay, 7th Dist. Mahoning No. 17 MA 0113,
2018-Ohio-985, ¶ 12.
{¶18} In his present petition for postconviction relief, Jackson argues that he
is intellectually disabled and is therefore ineligible for execution under Atkins v.
Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002).2 On June 20, 2002, in Atkins v.
Virginia, the Supreme Court of the United States held that executing intellectually
disabled persons is cruel and unusual punishment in violation of the Eighth
Amendment to the United States Constitution. Id. at 321. Furthermore, in State v.
Lott, which was decided on December 11, 2002, the Supreme Court of Ohio set
forth a three-part test to be applied in Ohio for courts making a determination of
whether a defendant is intellectually disabled and ineligible for execution under
Atkins. State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, ¶ 18, overruled by State
v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, ¶ 97.
2
Although earlier courts used the term “mental retardation,” we elect to use the phrase “intellectual
disability” throughout the opinion. See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002) and State v.
Lott, 97 Ohio St.3d 303, 2002-Ohio-6625.
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{¶19} Jackson argues that he was unavoidably prevented from timely
discovering his intellectual disability because during his initial postconviction
proceedings, the trial court denied his request to retain a forensic psychologist
experienced in examining individuals charged with capital offenses. For the reasons
that follow, we disagree.
{¶20} First, a review of Jackson’s initial petition for postconviction relief
and request for an appropriation of funds reveals that Jackson did not actually raise
an Atkins claim in his initial postconviction petition or request an appropriation of
funds specifically for the purpose of evaluating whether he has an intellectual
disability.
{¶21} On August 13, 2003, Jackson filed his initial petition for
postconviction relief raising 26 claims for relief, including several claims that his
trial counsel was ineffective because he failed to develop and present compelling
mitigation evidence. (Doc. No. 410). Specifically, Jackson argued that his trial
counsel failed to thoroughly investigate his background, including his juvenile
record, his mother’s history of mental illness, addiction, and neglect of Jackson, and
the records of his “lengthy and bizarre history with Children’s Services.” (Id.).
Jackson also alleged that his trial counsel erred by not presenting mitigating
evidence regarding his “severe problems with anger, with drugs, with education,
and with lack of respect for the law * * *.” (Id.). Jackson further argued in his
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initial petition for postconviction relief that his trial counsel failed to request or
demonstrate the need for adequate investigative and expert assistance during the
trial and penalty phase “in order for counsel to fully and thoroughly investigate the
life history and background of [Jackson] and to fully present that life history and
background and explain the effect of that history on his development at the penalty
phase of the trial.” (Id.). Jackson alleged that his trial counsel was ineffective for
failing to employ an expert to “explain the devastating effects of being raised in a
family and in an environment where drugs and alcohol abuse played such a
dominant role.” (Id.).
{¶22} On August 29, 2003, Jackson filed a motion for appropriation of funds
for investigative and expert assistance to permit his postconviction counsel to fully
investigate and present the claims in his petition for postconviction relief. (Doc.
No. 418). In his brief in support of his motion for appropriation of funds, Jackson
requested funding for the following expert and investigative assistance: “ballistics
expert; gunshot trajectory expert; crime scene reconstruction expert; jury selection
(jury interview) expert; mitigation specialist; forensic psychologist (with an
expertise in the effects of childhood trauma and exposure to drug and alcohol abuse
and its effect on development); cultural expert and attorney expert to testify to the
prevailing professional norms.” (Id.). On September 11, 2003, the trial court denied
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Jackson’s motion for appropriation of funds to hire expert and investigative
assistance. (Doc. No. 419).
{¶23} Thus, although Jackson argues that his motion for appropriation of
funds was for the purpose of examining him for an intellectual disability, a review
of Jackson’s petition for postconviction relief and motion for appropriation of funds
reveals that Jackson was specifically requesting funds to further his claim that his
trial counsel was ineffective for failing to develop and present mitigating evidence
regarding his childhood trauma and upbringing rather than to develop an Atkins
claim. As the Second District held in State v. Bays, “[t]here is a significant
difference between expert testimony offered for mitigation purposes and expert
testimony offered for Atkins purposes.” State v. Bays, 159 Ohio App.3d 469, 2005-
Ohio-47, ¶ 23 (2d Dist.). Here, Jackson specifically stated in his motion for
appropriation of funds that he was requesting funding to develop the claims he
raised in his initial petition for postconviction relief. Although his petition for
postconviction relief included claims that his trial counsel was ineffective for failing
to develop and present mitigation, his petition for postconviction relief did not
include an allegation that he was intellectually disabled and, thus, ineligible for the
death penalty under Atkins. Accordingly, Jackson’s request for funding for
mitigation purposes is distinct from a request for funding to develop an Atkins claim.
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{¶24} Furthermore, Jackson’s initial petition for postconviction relief was
filed after Atkins and Lott, and thus, Jackson’s initial postconviction counsel should
have been aware of the bar against executing intellectually disabled individuals
when filing Jackson’s petition for postconviction relief. See Clay, 2018-Ohio-985,
at ¶ 12 (“Appellant’s alleged state of being unaware of the law on postconviction
relief does not satisfy an exception to the statute’s timeliness requirements.”); State
v. Kane, 10th Dist. Franklin No. 16AP-781, 2017-Ohio-7838, ¶ 17 (“[I]gnorance of
the law does not excuse appellant’s untimely filing of her petition for postconviction
relief.”). Nevertheless, Jackson failed to raise an Atkins claim during his initial
petition for postconviction relief. Accordingly, because Jackson’s counsel did not
raise an Atkins claim or file a petition for postconviction relief requesting funding
specifically for the purpose of developing an Atkins claim, we cannot say that
Jackson was unavoidably prevented from discovering his intellectual disability as
his initial postconviction petition could have raised an Atkins claim or included a
request for funding to develop an Atkins claim.
{¶25} Furthermore, although Jackson argues that he was unavoidably
prevented from discovering his intellectual disability, there is no indication that he
sought alternative funding to discover his intellectual disability, particularly after
the trial court denied his motion for appropriation of funds. Jackson’s lack of
reasonable diligence is exemplified by the fact that, many years later, he was
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actually able to secure alternative funding to discover the facts which he now uses
to support his claim that he is intellectually disabled. (Doc. No. 456).
{¶26} Jackson also argues that he was unavoidably prevented from
discovering the facts that support his claim of intellectual disability due to the
ineffective assistance of his trial counsel. (Appellant’s Brief at 24-29). Jackson
argues that if his trial counsel had sought cognitive testing of Jackson, his trial
counsel would have discovered the facts that would have supported his future claim
that he is intellectually disabled and thus ineligible for the death penalty under
Atkins. Although Jackson contends that he would not have been able to raise his
Atkins claim at the time of his initial trial and sentencing because Lott had not yet
been decided, he contends that evidence of his intellectual abilities should have been
used as mitigating evidence at the sentencing phase.
{¶27} However, as discussed above, Jackson actually did allege in his initial
petition for postconviction relief that his trial counsel was ineffective for failing to
develop and present mitigating evidence and the trial court found his argument to
be without merit. (Doc. Nos. 410, 423). Further, this court affirmed the trial court’s
decision on appeal. Jackson, 2004-Ohio-5350, at ¶ 25. Thus, Jackson’s previous
trial counsel was previously determined to not be ineffective with respect to the
preparation and presentation of mitigating evidence. See State v. Crockett, 8th Dist.
Cuyahoga No. 103199, 2016-Ohio-220, ¶ 16 (finding the petitioner failed to
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demonstrate he was unavoidably prevented from discovering facts to support his
claim for relief because his trial counsel was effective). Furthermore, Jackson had
an opportunity to raise his Atkins claim in his initial postconviction petition, but
failed to do so. Yet, Jackson does not allege that his initial postconviction counsel
was ineffective for failing to discover the same evidence or failing to raise an Atkins
claim during his initial postconviction proceedings. See State v. Peters, 9th Dist.
Wayne No. 09CA0007, 2009-Ohio-6024, ¶ 11 (finding that “the record does not
indicate that the trial court would have found Peters provided clear and convincing
proof that she was unavoidably prevented from discovering her medical condition
but for the ineffective assistance of counsel”).
{¶28} “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.’” Cunningham, 2016-
Ohio-3106, at ¶ 22, quoting State v. Creech, 4th Dist. Scioto No. 12CA3500, 2013-
Ohio-3791, ¶ 18. Accordingly, we find Jackson’s argument that he was unavoidably
prevented from discovering the factual basis of his second petition for
postconviction relief due to the ineffective assistance of his trial counsel to be
without merit.
{¶29} In conclusion, because Jackson failed to raise an Atkins claim during
his initial postconviction proceedings, failed to request funds for the purpose of
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developing an Atkins claim, and failed to pursue alternative funding, we cannot find
that Jackson exercised reasonable diligence to learn of his intellectual disability
within the time specified for his petition for postconviction relief. Accordingly, we
cannot find that Jackson was unavoidably prevented from discovering the facts upon
which he must rely to present his claim for relief.
{¶30} Having concluded that Jackson was not unavoidably prevented from
discovering the facts upon which he must rely to present his claim for relief, we now
address Jackson’s argument that the Supreme Court of the United States recognized
a new substantive right that retroactively applies to persons in his situation.
{¶31} As discussed previously, the Supreme Court of the United States
decided Atkins, which held that executing intellectually disabled persons violates
the Eighth Amendment, in June 2002, prior to Jackson’s trial, sentencing, and initial
petition for postconviction relief. Atkins, 536 U.S. at 321. In Atkins, the Court held
that although intellectually disabled persons are not exempt from criminal sanctions,
their “disabilities in areas of reasoning, judgment, and control of their impulses”
“diminish their personal culpability.” Id. at 306, 318. Accordingly, “they do not
act with the level of moral culpability that characterizes the most serious adult
conduct.” Id. at 306. Thus, the Court held that putting an intellectually disabled
person to death is not a proportionate punishment. Id. at 311. However, the Court
did not dictate a specific standard for determining whether an offender was
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intellectually disabled, but stated that it would “‘leave to the State[s] the task of
developing appropriate ways to enforce the constitutional restriction upon [their]
execution of sentences.’” Id. at 317, quoting Ford v. Wainwright, 477 U.S. 399,
405, 416-417, 106 S.Ct. 2595 (1986).
{¶32} In State v. Lott, which was decided on December 11, 2002, the
Supreme Court of Ohio set forth a three-part test to be applied in Ohio for courts
making a determination of whether a defendant is intellectually disabled and
ineligible for execution under Atkins. Lott, 2002-Ohio-6625, at ¶ 18, overruled by
Ford, 2019-Ohio-4539, at ¶ 97. The Supreme Court of Ohio decided Lott before
Jackson filed his initial petition for postconviction relief. Thus, Jackson had the
benefit of both Atkins and Lott when he filed his initial petition for postconviction
relief.
{¶33} Nevertheless, Jackson argues that following the conclusion of his state
proceedings, the Supreme Court of the United States decided a series of three cases
which recognized new rights under the Eighth and Fourteenth Amendments that
apply retroactively to him. Jackson argues that because the cases were decided
subsequent to the filing of his initial petition for postconviction relief, his successive
petition for postconviction relief meets the jurisdictional requirement under R.C.
2953.23. We disagree.
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{¶34} On May 27, 2014, in Hall v. Florida, the Supreme Court of the United
States held that a Florida law, which defined intellectual disability as having an IQ
of 70 or below, was too rigid. 572 U.S. 701, 704, 134 S.Ct. 1986 (2014). After
analyzing the Eighth Amendment principles behind its decision in Atkins, the court
in Hall stated that “[t]he question this case presents is how intellectual disability
must be defined in order to implement these principles and the holding of Atkins.”
Id. at 709. The court held that the Florida definition of intellectual disability was
unconstitutional because it created an “unacceptable risk” that persons with
intellectual disabilities would be executed. Id. at 704. The court cautioned that
states’ discretion in determining appropriate ways to enforce the restriction on
executing intellectually disabled individuals is not “unfettered” and should “be
informed by the medical community’s diagnostic framework.” Id. at 719, 721.
Accordingly, the court held that “[i]n determining who qualifies as intellectually
disabled, it is proper to consult the medical community’s opinions.” Id. at 710.
Relying on the most recent versions of medical diagnostic manuals, the Supreme
Court concluded that Florida had “disregard[ed] established medical practice” and
diverged from the practices and trends in other states. Id.
{¶35} In Moore v. Texas (“Moore I”), which was decided in 2017, the
Supreme Court of the United States vacated a Texas Court of Criminal Appeals’s
decision determining that Moore was not intellectually disabled. Moore v. Texas,
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___U.S.___, 137 S.Ct. 1039, 1053 (2017). The court held that the Texas Court of
Criminal Appeals erred by “fail[ing] adequately to inform itself of the ‘medical
community’s diagnostic framework’” and adopting outdated standards for the
determination of what constituted an intellectual disability for Atkins claims. Id.,
quoting Hall at 722.
{¶36} In a subsequent appeal, the Supreme Court of the United States
determined in Moore v. Texas, ___U.S.___, 139 S.Ct. 666 (2019) (“Moore II”), that
the Texas Court of Criminal Appeals’s decision on remand was inconsistent with
the court’s directive in Moore I because the language and content in the Texas
court’s opinion rested upon analysis which “too closely resembles” that which the
court found improper in Moore I. Moore II at 672.
{¶37} On November 7, 2019, in State v. Ford, the Supreme Court of Ohio
revisited the three-part test set forth in Lott for making a determination of whether
a defendant is intellectually disabled and ineligible for execution under Atkins.
Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, at ¶ 76-100. Upon review of the test
outlined in Lott, the Supreme Court of Ohio determined that Lott’s holding that there
exists a rebuttable presumption that a defendant with an IQ score above 70 is not
intellectually disabled is no longer valid. Id. at ¶ 100. In so deciding, the Supreme
Court of Ohio expressly overruled Lott. Id.
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{¶38} In place of the three-part test outlined in Lott, the Supreme Court of
Ohio held that a court determining whether a defendant is intellectually disabled
must consider three core elements:
(1) intellectual-functioning deficits (indicated by an IQ score
approximately two standard deviations below the mean—i.e., a score
of roughly 70 or lower when adjusted for the standard error of
measurement), (2) significant adaptive deficits in any of the three
adaptive-skill sets (conceptual, social, and practical), and (3) the onset
of these deficits while the defendant was a minor.
Id. at ¶ 100.
{¶39} Jackson argues that because the Supreme Court of Ohio held that the
standard outlined in Lott for determining whether a defendant is intellectually
disabled is no longer valid, “Hall, therefore, represented a new, substantive change
to Ohio law” which must be retroactively applied to his successive petition for
postconviction relief. (Appellant’s Reply Brief at 8). However, Jackson’s reliance
on Ford is misplaced.
{¶40} In State v. Parker, the Supreme Court of Ohio held that although R.C.
2953.23(A) “permits a common pleas court to entertain an untimely or successive
petition [for postconviction relief] based on a new state or federal right recognized
by the United States Supreme Court, it provided no exception allowing an untimely
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or successive petition to be granted based on a new decision of [the Supreme Court
of Ohio].” State v. Parker, 157 Ohio St.3d 460, 2019-Ohio-3848, ¶ 2. Accordingly,
the Supreme Court of Ohio’s holding in Ford does not provide an exception to the
jurisdictional requirements of R.C. 2953.21. See id. See also State v. Lee, 3d Dist.
Crawford No. 3-18-14, 2018-Ohio-3715, ¶ 12.
{¶41} Jackson next argues that the United States Supreme Court decisions in
Hall, Moore I, and Moore II recognized new substantive rights under the Eighth and
Fourteenth Amendments which apply retroactively to him and that his claim is
based on those rights. Specifically, Jackson argues that the decisions in Hall, Moore
I, and Moore II “provide[ ] him an opportunity to seek relief from his death sentence
by proving his intellectual disability under the appropriate, applicable medical
standards.” (Appellant’s Reply Brief at 8).
{¶42} In general, “‘new constitutional rules of criminal procedure will not
be applicable to those cases which have become final before the new rules are
announced.’” Welch v. United States, ___U.S.___, 136 S.Ct. 1257, 1264 (2016),
quoting Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060 (1989). However, “new
substantive rules do apply retroactively.” Id. at 1259-1260, citing Teague at 310
and Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519 (2004). A decision is
substantive if it involves a “‘constitutional determination[ ] that place[s] particular
conduct or persons * * * beyond the State’s power to punish.’” Id. at 1265, quoting
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Schriro at 351-352. See Montgomery v. Louisiana, ___U.S.___, 136 S.Ct. 718, 729
(2016) (A rule is substantive if it precludes “a certain category of punishment for a
class of defendants because of their status or offense.”).
{¶43} It is not disputed that the Supreme Court of the United States did not
expressly make Hall, Moore I, and Moore II retroactive. In re Payne, 722
Fed.Appx. 534, 538 (6th Cir.2018). Yet, Jackson argues that the Hall and Moore
decisions themselves are retroactive applications of the rules they announce.
(Appellant’s Brief at 43-44). However, this argument is without merit because in
Hall and Moore, the Supreme Court of the United States “merely analyzed the
application of Atkins claims that were appropriately raised in state post-conviction
proceedings.” Payne at 538.
{¶44} Nevertheless, some courts have determined that Hall and Moore apply
retroactively. See White v. Commonwealth, 500 S.W.3d 208, 215 (Ky. 2016),
abrogated on other grounds, Woodall v. Commonwealth, 563 S.W.3d 1 (Ky. 2018)
(Hall “is ‘a substantive restriction on the State’s power to take the life’ of individuals
suffering from intellectual disabilities. We are dealing here with a U.S. Supreme
Court directive that not only proscribes intellectually disabled people from being
put to death, but defines the manner in which the mental deficiencies of offenders
must be evaluated. Therefore, Hall must be retroactively applied.”).
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{¶45} However, we choose to follow a substantial and growing body of case
law that has declined to apply Hall and Moore retroactively. See Phillips v. State,
___So.3d___, 2020 WL 2563476, *4-5 (Fla. 2020) (holding that “[t]he categorical
prohibition on executing the intellectually disabled was not expanded by Hall” and
receding from the Court’s previous holding that Hall warranted retroactive
application); Payne at 538-539 (declining to apply Moore and Hall retroactively);
In re Henry, 757 F.3d 1151, 1158, 1161 (11th Cir.2014) (holding that “Hall did
indeed announce a new rule of constitutional law” that is not retroactive because it
“merely provides new procedures for ensuring that States do not execute members
of an already protected group.”); In re Richardson, 802 Fed.Appx. 750, 755-757
(4th Cir.2020) (declining to apply Hall retroactively); In re Hill, 777 F.3d 1214,
1223 (11th Cir.2015) (“Hall merely provides new procedures for ensuring that
States do not execute members of an already protected group.”); Goodwin v. Steele,
814 F.3d 901, 904 (8th Cir.2014) (denying petitioner’s motion to authorize a
successive application predicated upon Hall because the petitioner “has not made a
prima facie showing that the Supreme Court has held that Hall is retroactive”);
Williams v. Kelley, 858 F.3d 464, 474 (8th Cir.2017) (declining to apply Moore
retroactively); Weathers v. Davis, 915 F.3d 1025, 1026-1027 (5th Cir.2019)
(declining to apply Moore retroactively); Kilgore v. Sec’y, Fla. Dep’t of Corr., 805
F.3d 1301, 1314 (11th Cir.2015) (holding that Hall is not retroactively applicable
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because it “merely provides new procedures for ensuring that states follow the rule
enunciated in Atkins” and did not expand the class of individuals protected by
Atkins’s prohibition against the execution of individuals who are intellectually
disabled); Lynch v. Hudson, S.D.Ohio No. 2:07-CV-948, 2017 WL 3404773, *2-3
(Aug. 9, 2017) (declining to apply Moore and Hall retroactively); Elmore v. Shoop,
S.D.Ohio No. 1:07-CV-776, 2020 WL 3410764, *10 (June 22, 2020) (stating that
Hall and Moore do not apply retroactively); Prieto v. Davis, E.D.Va. No.
3:13CV849-HEH, 2014 WL 3867554, *41-42 (Aug. 5, 2014) (Hall does not apply
retroactively). Accordingly, we find that Hall and Moore did not announce new
substantive rights that must be applied retroactively to Jackson.
{¶46} Having determined that Jackson failed to satisfy R.C.
2953.23(A)(1)(a), we need not decide the question of whether Jackson showed that
“but for constitutional error at the sentencing hearing, no reasonable factfinder
would have found [Jackson] eligible for the death sentence.” R.C.
2953.23(A)(1)(b). See Cunningham, 2016-Ohio-3106, at ¶ 22. Accordingly,
because Jackson did not make the requisite showing under R.C. 2953.23(A)(1), the
trial court lacked jurisdiction to consider Jackson’s untimely petition for
postconviction relief. Lee, 2018-Ohio-3715, at ¶ 12.
{¶47} Because Jackson’s petition is untimely and the trial court lacked
jurisdiction to consider the petition, the trial court should have dismissed Jackson’s
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petition; however, the trial court did not abuse its discretion by denying, rather than
dismissing, Jackson’s petition. See State v. Carter, 3d Dist. Allen No. 1-17-09,
2017-Ohio-4354, ¶ 12, citing Hatfield, 2008-Ohio-1377, at ¶ 8, citing Hamilton,
2004-Ohio-2573, at ¶ 9 and Hensley, 2003-Ohio-6457, at ¶ 7.
{¶48} Although Jackson argues that the trial court erred by rejecting his
second petition for postconviction relief without a hearing, “[t]he filing of a petition
for postconviction relief does not automatically entitle the petitioner to an
evidentiary hearing.” State v. Andrews, 3d Dist. Allen No. 1-11-42, 2011-Ohio-
6106, ¶ 11, citing State v. Calhoun, 86 Ohio St.3d 279, 282 (1999). Under R.C.
2953.21(D), “[b]efore granting a hearing on a petition * * *, the court shall
determine whether there are substantive grounds for relief.” See State v. Brown, 3d
Dist. Allen No. 1-11-68, 2012-Ohio-2126, ¶ 6, citing Calhoun at 282-283; State v.
Schwieterman, 3d Dist. Mercer No. 10-09-12, 2010-Ohio-102, ¶ 22, citing State v.
Jones, 3d Dist. Defiance No. 4-07-02, 2007-Ohio-5624, ¶ 12. “In making such a
determination, the court shall consider, in addition to the petition, the supporting
affidavits, and the documentary evidence, all the files and records pertaining to the
proceedings against the petitioner * * *.” R.C. 2953.21(D).
{¶49} “‘[I]f the court determines that there are no substantive grounds for
relief, it may dismiss the petition without an evidentiary hearing.’” State v. Driskill,
3d Dist. Mercer Nos. 10-07-03 and 10-07-04, 2008-Ohio-827, ¶ 13, quoting Jones
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at ¶ 14. “The decision to grant the petitioner an evidentiary hearing is left to the
sound discretion of the trial court.” Andrews at ¶ 11, citing Calhoun at 284.
Accordingly, “[w]e review the trial court’s dismissal of a post-conviction petition
without a hearing for abuse of discretion.” State v. Jeffers, 10th Dist. Franklin No.
10AP-1112, 2011-Ohio-3555, ¶ 23, citing State v. Banks, 10th Dist. Franklin Nos.
10AP-1065, 10AP-1066, and 10AP-1067, 2011-Ohio-2749, ¶ 11. See Driskill at ¶
14. An abuse of discretion suggests the trial court’s decision is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983). When the abuse of discretion standard applies, an appellate court is not to
substitute its judgment for that of the trial court. State v. Thompson, 3d Dist. Henry
No. 7-16-10, 2017-Ohio-792, ¶ 11. Because Jackson has not demonstrated that one
of the exceptions in R.C. 2953.23(A) applies to this case, we find that the trial court
did not abuse its discretion by denying Jackson’s untimely, successive
postconviction relief without an evidentiary hearing. See State v. Workman, 3d Dist.
Auglaize No. 2-19-09, 2019-Ohio-5379, ¶ 17.
{¶50} Furthermore, because we have found that the trial court lacked
jurisdiction to consider Jackson’s petition, we need not address Jackson’s argument
that the trial court erred by determining that Jackson’s petition for postconviction
relief was barred by res judicata.
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{¶51} Finally, Jackson argues that the trial court denied him fair process of
his claims and evidence. Specifically, Jackson alleges that the trial court failed to
abide by R.C. 2953.21(D) and give proper consideration to Jackson’s petition,
thereby violating his due process rights and rights to fair consideration. R.C.
2953.21(D) provides that before granting a hearing on a petition for postconviction
relief, “the court shall consider, in addition to the petition, the supporting affidavits,
and the documentary evidence, [and] all the files and records pertaining to the
proceedings against the petitioner * * *.” Jackson asserts that the trial court failed
to afford him the full and necessary consideration required in capital cases due to
the timing of the trial court’s decision on his successive petition for postconviction
relief. As Jackson notes, on September 4, 2019, he filed his petition for
postconviction relief, which was 45 pages in length and contained over 500 pages
of exhibits. On September 25, 2019, the State filed its answer and motion to dismiss.
The following day, the trial court denied Jackson’s second petition for
postconviction relief. Jackson contends that “[t]he timing suggests that the court
did not review the evidence [he] submitted to support his claim that he is
intellectually disabled.” (Appellant’s Brief at 47). Jackson also argues that because
the trial court denied his second petition for postconviction relief before he was
served with the State’s response, the trial court did not permit Jackson to know of
or respond to the State’s argument prior to denying his petition. (Id.). However,
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Jackson fails, in both his merit brief and reply brief, to provide legal authority
supporting his contention that the 21 days that the trial court had to consider his
second petition for postconviction relief was insufficient for the trial court to give
his petition full and necessary consideration. “Where an appellant fails to develop
an argument in support of his assignment of error, this Court will not create one for
him.” State v. Franks, 9th Dist. Summit No. 28533, 2017-Ohio-7045, ¶ 16, citing
State v. Harmon, 9th Dist. Summit No. 26426, 2013-Ohio-2319, ¶ 6, citing App.R.
16(A)(7) and Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934,
*8 (May 6, 1998). “‘If an argument exists that can support [an] assignment of error,
it is not this [C]ourt’s duty to root it out.’” Id., quoting Cardone at *8. Thus, we
reject Jackson’s argument that the trial court failed to abide by R.C. 2953.21(D) and
give proper consideration to his second petition for postconviction relief.
{¶52} Accordingly, Jackson’s assignment of error is overruled.
{¶53} 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 WILLAMOWSKI, J., concur.
/jlr
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State v. Jackson
Combined Opinion