[Cite as State v. Gordon,
2025-Ohio-1237.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 24AP-552
(C.P.C. No. 01CR-3612)
v. :
(ACCELERATED CALENDAR)
Michael L. Gordon, :
Defendant-Appellant. :
D E C I S I O N
Rendered on April 8, 2025
On brief: [Shayla D. Favor], Prosecuting Attorney, and
Paula M. Sawyers, for appellee.
On brief: Michael L. Gordon, pro se.
APPEAL from the Franklin County Court of Common Pleas
JAMISON, P.J.
{¶ 1} Defendant-appellant, Michael L. Gordon, appeals the judgment entry of the
Franklin County Court of Common Pleas denying his petition for postconviction relief. For
the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Gordon was indicted for multiple felonies stemming from a homicide. A jury
trial commenced on July 8, 2002, but a mistrial was declared on July 24, 2002. A second
trial commenced on February 19, 2003, and Gordon was convicted of one count of felonious
assault, one count of kidnapping, and two counts of involuntary manslaughter. Gordon
was sentenced to an aggregate term of 28 years in prison.
{¶ 3} Gordon filed a direct appeal asserting constitutional challenges and
insufficient evidence. The transcript was filed on May 7, 2003. On May 24, 2004, this court
No. 24AP-552 2
affirmed the conviction in State v. Gordon, 2004-Ohio-2644 (10th Dist.). Gordon filed his
first petition for postconviction relief on July 6, 2004, and has filed several successive
petitions and multiple motions seeking relief over the years. None have been successful.
{¶ 4} On July 22, 2024, Gordon filed the instant petition for postconviction relief.
On August 7, 2024, the trial court denied the petition, finding it was untimely, barred by
res judicata, and lacked evidentiary support. Gordon brings the instant appeal.
II. ASSIGNMENTS OF ERROR
{¶ 5} Gordon assigns the following as trial court errors:
[1.] The time limits and restrictions imposed (i.e. formerly
180-days) to file for a post-conviction relief motion pursuant
to R.C. 2953.21 was unconstitutional and unavoidably
prevented defendant from discovering the facts necessary to
file a claim of ineffective assistance of appellate counsel on
direct appeal for the denial, refusal, and failure to raise a
meritorious claim of a “conflict of interest” between defendant
and court appointed defense counsel . . . and newly enlisted
defense counsel.
[2.] The time limits and restrictions imposed (i.e. formerly
180-days) to file for a post-conviction relief motion pursuant
to R.C. 2953.21 was unconstitutional and unavoidably
prevented defendant from discovering the facts necessary to
file a claim of ineffective assistance of appellate counsel on
direct appeal for the denial, refusal, and failure to raise a
meritorious claim of a denial of defendant’s constitutional
right to be present at trial both from the confrontation clause
of the Sixth Amendment and the Due Process clause of the
Fifth Amendment.
[3.] The defendant hereby maintains that this issue is based
upon “newly discovered evidence,” wherein the State of Ohio
did breach the terms of a “proffer letter agreement” by using
defendant’s statements and other information provided by
him to the Grand Jury to seek and obtain the indictment.
[4.] The defendant hereby maintains that this issue is based
upon “newly discovered evidence,” wherein, the government
did breach an agreement and a promise by the Assistant
United States Attorney’s office, for the Northern District of
Georgia to recommend the reduction of defendant’s State of
Ohio sentence in the above case to “time served,” in exchange
No. 24AP-552 3
for defendant’s cooperation, testimony, and substantial
assistance in a capital punishment death penalty case.
(Sic passim.) (Capitalization normalized.) (Emphasis deleted.)
III. STANDARD OF REVIEW
{¶ 6} We review a decision to grant or deny a petition for postconviction relief,
including the decision whether to afford the petitioner a hearing, under an abuse-ofdiscretion standard. State v. Boddie, 2013-Ohio-3925 (10th Dist.). An abuse of discretion
connotes a decision that is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore,
5 Ohio St.3d 217, 219 (1983).
{¶ 7} However, whether a trial court has jurisdiction to entertain an untimely and
successive petition for postconviction relief is a question of law, which we review de novo.
State v. Kane, 2017-Ohio-7838 (10th Dist.).
IV. LEGAL ANALYSIS
{¶ 8} The trial court denied Gordon’s petition because of untimeliness and res
judicata. Before we turn to Gordon’s assignments of error, we must first consider whether
the trial court was correct.
{¶ 9} The postconviction relief process is a civil attack of a criminal judgment, as
opposed to an appeal of that judgment. State v. Calhoun, 86 Ohio St.3d 279 (1999). A
postconviction relief petition “ ‘is a means to reach constitutional issues which would
otherwise be impossible to reach because the evidence supporting those issues is not
contained in the record.’ ” State v. Sidibeh,
2013-Ohio-2309, ¶ 8 (10th Dist.), quoting State
v. Murphy,
2000 Ohio App. LEXIS 6129, *5 (10th Dist. Dec. 26, 2000). The petitioner
bears the burden of producing evidence of a “cognizable claim of constitutional error.”
State v. Harris,
2008-Ohio-2837, ¶ 7 (10th Dist.).
{¶ 10} Postconviction review is not a constitutional right, and a petitioner is not
entitled to an automatic hearing. State v. Heiney, 2020-Ohio-2761 (6th Dist.). The trial
court must review the entirety of the record to determine if the petition contains sufficient
operative facts to establish substantive grounds for relief. State v. Davenport, 2018-Ohio-
3949 (10th Dist.). If the record reflects that the petitioner is not entitled to relief, then the
trial court must dismiss the petition without a hearing. R.C. 2953.21(D). Substantive
grounds for relief exist and a hearing is warranted only if sufficient credible evidence is
No. 24AP-552 4
produced that demonstrates the petitioner suffered a violation of the petitioner’s
constitutional rights. State v. Bunch,
2022-Ohio-4723.
{¶ 11} In addition to substantive limitations, a petition must meet statutory
timelines. The version of R.C. 2953.21(A)(2) in effect in 2003 set the deadline to file a
postconviction petition at 180 days from the date of filing the transcript in a direct appeal.
The current version requires a petition be filed no later than 365 days after the date the
transcript was filed in a direct appeal. R.C. 2953.21(A)(2).
{¶ 12} A second or successive petition filed after the deadline bars postconviction
relief with limited exceptions. State v. Johnson, 2024-Ohio-134. An untimely petition is
only allowed if a petitioner first demonstrates that (1) he was unavoidably prevented from
discovering facts required for a claim for relief or (2) the United States Supreme Court has
recognized a new right that retroactively applies to the petitioner. R.C. 2953.23(A)(1)(a).
If a petitioner can demonstrate either condition, he must then establish that, but for the
constitutional error, no reasonable factfinder would have found him guilty. R.C.
2953.23(A)(1)(b).
{¶ 13} The deadline for Gordon to file a postconviction petition was November 7,
2003. The instant petition was filed in the trial court on July 22, 2024, well in excess of the
180-day period. Gordon’s petition was both untimely and successive. State v. Apanovitch,
2018-Ohio-4744.
{¶ 14} The trial court noted that Gordon does not identify any new facts that support
his petition, but simply repackaged the same facts and repeated arguments that have been
rejected in prior filings. The petition is not supported by affidavits of other documentary
evidence to support a claim for relief.
{¶ 15} Gordon does not assert that a new federal or state right that applies
retroactively to his situation has been recognized by the United States Supreme Court. The
only path to postconviction relief is through a showing that he was (1) unavoidably
prevented from discovering facts that would demonstrate his claim for relief, and (2) that,
but for a constitutional error, no reasonable factfinder would have found him guilty.
{¶ 16} Gordon has nothing to offer regarding any obstacles to discovering facts
necessary to present a claim for relief. He asserts that the R.C. 2953.21 time restrictions
were unconstitutional and unavoidably prevented the discovery of sufficient facts, but
No. 24AP-552 5
conclusionary statements alone are no help. State v. Barnes, 1977 Ohio App. LEXIS 8950
(10th Dist. June 16, 1977). There is no evidentiary basis to conclude that Gordon was
prevented from discovering any of the information referenced, especially since the
information was available decades earlier. Gordon offered no justification for the untimely
filing, and therefore is unable to show that he was unavoidably prevented from discovering
sufficient facts to support his claims. R.C. 2953.23(A)(1)(a). There is no excuse for the
delay in seeking relief.
{¶ 17} Regarding R.C. 2953.23(A)(1)(b), Gordon did not show by clear and
convincing evidence that, but for the alleged constitutional errors during his trial, no
reasonable factfinder would have found him guilty of any of the charges. The trial court
concluded that Gordon did not satisfy the R.C. 2953.23(A) requirements for untimely filing.
{¶ 18} A trial court may also dismiss a petition for postconviction relief without
holding a hearing when the doctrine of res judicata bars the claims raised in the petition.
State v. Gordon, 2024-Ohio-530 (10th Dist.). Under the doctrine of res judicata, a criminal
conviction precludes a defendant from raising and litigating in any proceeding other than
an appeal from that conviction, any defense or due process issue that was raised or could
have been raised at trial or on appeal. State v. Goodrich,
2024-Ohio-5336 (10th Dist.).
{¶ 19} Gordon’s claims that a proffer letter was breached, a conflict of interest
between his attorneys, participation in sidebar conferences, and an alleged promise for a
sentence reduction, were based on information available for use at the time of the trial.
Because the claims could have been raised either at trial or on direct appeal, and there is no
newly discovered competent evidence outside of the trial court record, the claims are barred
by res judicata. State v. Villareal, 2022-Ohio-1473 (10th Dist.). In addition, the same
claims were raised in earlier postconviction petitions and summarily denied by the trial
court. State v. Timm,
2024-Ohio-2929 (5th Dist.).
{¶ 20} Because Gordon failed to demonstrate his entitlement to an exception that
would allow the trial court to consider his untimely eighth postconviction relief petition,
the trial court did not possess jurisdiction to entertain the petition, and did not err in
dismissing Gordon’s petition without a hearing. State v. Burke, 2002-Ohio-6840 (10th
Dist.). Moreover, assuming the trial court possessed jurisdiction, Gordon’s arguments are
barred by res judicata. State v. C.W.,
2023-Ohio-4393 (10th Dist.).
No. 24AP-552 6
{¶ 21} For the reasons above, Gordon’s four assignments of error lack merit and are
overruled.
V. CONCLUSION
{¶ 22} Having overruled Gordon’s four assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN and EDELSTEIN, JJ., concur.
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