[Cite as State v. Clinton,
2024-Ohio-4720.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. E-21-053
Appellee Trial Court No. 2012 CR 383
v.
Curtis L. Clinton DECISION AND JUDGMENT
Appellant Decided: September 27, 2024
…
Kevin J. Baxter, Erie County Prosecuting Attorney, and
Stephen E. Maher, Special Assistant Prosecuting Attorney, for appellee.
Kimberly S. Rigby and Michelle Umana for appellant.
…
OSOWIK, J.
I. INTRODUCTION
{¶ 1} Appellant, Curtis Clinton, appeals the October 26, 2021 judgment of the Erie
County Court of Common Pleas, dismissing his timely-filed R.C. 2953.21 petition for
postconviction relief without an evidentiary hearing. Clinton appeals the dismissal of all
66 grounds for relief, which assert a variety of ineffective assistance of counsel and due
process claims.
{¶ 2} As set forth below, we find that, as to the majority of those claims, the trial
court either failed to make any findings of fact and conclusions of law, or issued findings
and conclusions that lack the specificity required by R.C. 2953.21(D), requiring their
remand. Elsewhere, the trial court issued findings and conclusions but applied the wrong
legal standard for determining when a hearing is required, under State v. Bunch, 2022-
Ohio-4723, or whether res judicata applies to bars claims of ineffective assistance of
counsel, under State v. Blanton, 2022-Ohio-3985. Where the trial court applied the
wrong legal standard and where we have also found that Clinton set forth substantive
grounds for relief, supported by evidence outside the record, we remand those claims for
a hearing. Separately, we also find that the trial court erred in denying Clinton’s Crim.R.
42(C) motion for discovery. We remand, with the instruction that the trial court order the
prosecution to provide Clinton with the “access” to those materials mandated by that rule.
{¶ 3} In sum, we reverse the trial court’s judgment, in part, and remand for (1)
“access” to certain materials as required by Crim.R. 42(C), and (2) findings of fact and
conclusions of law, as required by R.C. 2953.21, with respect to specific grounds for
relief (“G/R”) identified in this decision, to be followed by (3) a hearing on (a) specific
“G/R’s” identified in this decision and (b) any other G/Rs that the trial court determines,
in its review, also meet the standard for a hearing after issuing the necessary findings of
fact and conclusions of law under R.C. 2953.21.
2.
II. BACKGROUND
{¶ 4} We briefly describe those facts that are relevant to the issues raised in
postconviction. For a more thorough description of the facts and evidence offered during
Clinton’s 2013 trial, see the Ohio Supreme Court’s decision affirming Clinton’s
conviction and death sentence. State v. Clinton, 2017-Ohio-9423, ¶ 4-33.
{¶ 5} On September 2, 2012, Clinton raped 17-year-old, E.S., twice, at his
Sandusky apartment. During one of the rapes, Clinton choked E.S. until she passed out.
E.S. reported the attack and was examined at a hospital. DNA testing of vaginal and anal
swabs taken during E.S.’s examination indicated the presence of a DNA profile that was
consistent with Clinton’s.
{¶ 6} Less than a week after E.S.’s rape, Heather Jackson and her three-year-old
daughter, C.J., and one-year old son, W.J., were murdered in their Sandusky home.
{¶ 7} The evidence established that Heather Jackson had multiple visitors to her
home on the evening of Friday, September 7, 2012, into the early morning hours on
Saturday, September 8, 2012. The state alleged that the murders were committed early
Saturday morning.
{¶ 8} On Saturday evening, Jackson’s body was found in her bedroom by two
friends who entered her home, after hearing that she “was missing.” When police
arrived, they found Jackson’s body wedged between the box spring and mattress in her
bedroom with a ligature around her neck. C.J. and W.J. were found behind stacked boxes
inside a utility closet. Each child had a ligature around the neck.
3.
{¶ 9} All of the individuals known to have been at Jackson’s home before the
murders were interviewed and eliminated as suspects. The police were assisted by cell
phone records and by surveillance tapes from Firelands Hospital in Sandusky, “which is
so close to Jackson’s home that its cameras recorded the outside of Jackson’s home and
the approaching street.” Clinton at ¶ 17.
{¶ 10} Phone records showed that two of the last calls that Jackson received on
September 8, 2012, were from a phone number assigned to Clinton. The first call was
received at 3:00 a.m. and lasted 182 seconds. The second call, at 3:12 a.m., lasted 38
seconds. Surveillance video from the hospital showed a white Cadillac arrive at
Jackson’s home at 3:10 a.m. and departing at 4:16 a.m. The Cadillac returned at 4:20
a.m. and left a minute and a half later. The detective who reviewed the surveillance
video, had also investigated the rape of E.S. the week before and knew that Clinton drove
a white Cadillac. The police began looking for Clinton.
{¶ 11} On Monday, September 10, 2012, police learned that Clinton had been
admitted to Bellevue Hospital the previous day, as a suicidal person. When police
arrived, Clinton was being discharged, and he agreed to go with them to the station.
During the taped interview with police, which was played at trial, Clinton admitted that
he had been to Jackson’s apartment early Saturday morning and that they “had sex,” but
he denied killing Jackson or her children. Clinton was arrested and incarcerated in the
county jail.
4.
{¶ 12} While in jail, Clinton called his mother, and excerpts from that
conversation were also played for the jury. Clinton made a number of incriminating
statements and also expressed his intention to “go in there and plead guilty.”
{¶ 13} The coroner testified at trial that all three murder victims died by ligature
strangulation and that Heather Jackson’s rectum and her daughter C.J.’s rectum were
“more open than [they] normally [are] after death.” As to C.J. in particular, the coroner
testified that, something was in her rectum at “about the time of death.” A forensic
scientist with BCI testified that seminal fluid was detected on the anal swabs obtained
from C.J., and testing performed on a small portion of C.J.’s underwear was also
determined to contain a sperm cell. Another BCI witness testified that a mixture of DNA
was found on the anal swabs from C.J. The major DNA profile was consistent with
C.J.’s and the minor profile was consistent with Clinton’s, as was the Y-chromosome
profile from that sample. Clinton’s DNA was also found on the stain from C.J.’s
underwear. Clinton’s DNA was also found on swabs from C.J.’s ankles and left wrist,
the ligature on W.J., and Heather Jackson’s right wrist.
{¶ 14} Following a jury trial in December of 2013, Clinton was convicted of
aggravated murder and rape and sentenced to death, which was affirmed on direct appeal.
Id.
{¶ 15} On November 25, 2014, Clinton filed a petition for post-conviction relief,
which he amended, with leave, on March 25 and June 24, 2015. All post-conviction
litigation was stayed pending the ruling on the direct appeal. After Clinton’s conviction
5.
and sentence were affirmed, on December 19, 2017, Clinton’s petition for postconviction
relief was stayed for additional periods while he continued his appeal process. The stay
was lifted on January 31, 2020. On April 6, 2020, Clinton amended his petition a third
time. A comprehensive petition was filed in the trial court on May 10, 2021, and we have
relied primarily upon that filing in our review (hereinafter referred to as “the petition.”)
See Notice Filed of Withdrawal of Ground for Relief and Partial Withdrawal of Exhibit.
In all, Clinton presented 67 grounds for relief, consisting of a variety of ineffective
assistance of counsel and due process claims. Clinton included 83 exhibits in support of
his claims.
{¶ 16} The state filed for summary judgment, which Clinton opposed, and both
parties filed proposed findings of fact and conclusions of law. By judgment dated
October 26, 2021, the trial court rejected all of Clintons claims without holding a hearing.
Separately, the trial court also denied Clinton’s motions to conduct discovery, which he
requested in 2015, pursuant to R.C. 2953.21, and in 2018, pursuant to Crim.R. 42(C).
Clinton appealed, raising 16 assignments of error.
FIRST ASSIGNMENT OF ERROR: The trial court abused its
discretion when it applied the doctrine of res judicata to bar Clinton’s
Grounds for Relief.
SECOND ASSIGNMENT OF ERROR: The trial court abused its
discretion in denying Clinton relief on the grounds that he and his counsel
6.
were denied access to, and discovery of, material exculpatory information
possessed by the State, in violation of Brady v. Maryland, 373 U.S. 83
(1963).
THIRD ASSIGNMENT OF ERROR: The trial court abused its
discretion in denying Clinton relief on the ground that he was actually
innocent of the offenses for which he is convicted and sentenced to death.
FOURTH ASSIGNMENT OF ERROR: The trial court abused its
discretion in denying Clinton relief on the grounds that his counsel were
ineffective to his prejudice during the trial phase of his capital trial.
FIFTH ASSIGNMENT OF ERROR: The trial court abused its
discretion in denying Clinton relief on the grounds that his counsel were
ineffective to his prejudice during the mitigation phase of his capital trial.
SIXTH ASSIGNMENT OF ERROR: The trial court abused its
discretion when it denied Clinton’s claims that he was denied his right to a
fair and impartial jury.
SEVENTH ASSIGNMENT OF ERROR: The trial court abused its
discretion when it denied Clinton relief on the ground that the trial court
failed to ensure constitutionally adequate voir dire on race.
7.
EIGHTH ASSIGNMENT OF ERROR: The trial court abused its
discretion when it failed to address Clinton’s claims that his due process
rights were violated by the trial court allowing the consumption of DNA
evidence without notifying trial counsel.
NINTH ASSIGNMENT OF ERROR: The trial court erred when it
denied Clinton’s ground for relief that his due process rights were violated
by the trial court allowing the admission of evidence with an undocumented
chain of custody.
TENTH ASSIGNMENT OF ERROR: The trial court abused its
discretion in denying Clinton’s claim that his due process rights were
violated when the trial court allowed his involuntary statement to be used as
evidence during Clinton’s capital trial.
ELEVENTH ASSIGNMENT OF ERROR: The trial court abused
its discretion in denying Clinton’s claim that the cumulative effect of the
State’s investigative errors and actions violated Clinton’s due process
rights.
TWELFTH ASSIGNMENT OF ERROR: The trial court abused its
discretion in denying Clinton’s claim that his due process rights were
violated when the trial court allowed trial counsel to waive Clinton’s right
8.
to present mitigation and accepted the waiver at a hearing where Clinton
was not present.
THIRTEENTH ASSIGNMENT OF ERROR: The trial court abused
its discretion in denying Clinton relief on the grounds that his due process
rights were violated when the trial court failed to follow Ohio sentencing
law.
FOURTEENTH ASSIGNMENT OF ERROR: The trial court
abused its discretion when it denied Clinton’s claim that he was prejudiced
by the cumulative errors that occurred at his capital trial without providing
an evidentiary hearing on his post-conviction petition.
FIFTEENTH ASSIGNMENT OF ERROR: The trial court abused
its discretion when it denied Clinton’s claim that Ohio’s postconviction
procedures are constitutionally inadequate.
SIXTEENTH ASSIGNMENT OF ERROR: The trial court erred by
denying Clinton’s postconviction petition without allowing him to conduct
discovery.
III. POSTCONVICTION PROCEEDINGS UNDER OHIO LAW
{¶ 17} A postconviction proceeding is a collateral civil attack on a criminal
judgment, not an appeal of a criminal conviction. State v. Calhoun, 86 Ohio St.3d 279
9.
(1999). To prevail, the petitioner must establish a violation of his constitutional rights
that renders the judgment of conviction void or voidable. R.C. 2953.21(A)(1)(a).
{¶ 18} In order to grant a hearing on a timely postconviction petition, the trial
court must “determine whether there are substantive grounds for relief.” R.C.
2953.21(D). If the petition “is sufficient on its face to raise an issue that the petitioner’s
conviction is void or voidable on constitutional grounds, and the claim is one which
depends upon factual allegations that cannot be determined by examination of the files
and records of the case, the petition states a substantive ground for relief.” State v.
Bunch, 2022-Ohio-4723, ¶ 23 quoting State v. Milanovich,
42 Ohio St.2d 46 (1975),
paragraph one of the syllabus.
{¶ 19} To determine whether the petition states a substantive ground for relief, the
trial court must consider the entirety of the record from the trial proceedings as well as
any evidence filed by the parties in postconviction proceedings. Bunch at ¶ 24 citing
R.C. 2953.21(D). If the record on its face demonstrates that the petitioner is not entitled
to relief, then the trial court must dismiss the petition. Id. citing R.C. 2953.21(D) and (E).
Conversely, if the record does not on its face disprove the petitioner’s claim, then the
court is required to “proceed to a prompt hearing on the issues.” Id. at ¶ 24; see also,
State v. Hatton,
2022-Ohio-3991, ¶ 28 (“The defendant is entitled to an evidentiary
hearing when the allegations in the motion demonstrate substantive grounds for relief”).
10.
A. Res judicata applies to postconviction relief proceedings.
{¶ 20} The doctrine of res judicata applies to postconviction relief proceedings.
State v. Perry, 10 Ohio St.2d 175, 179 (1967). The general rule of res judicata is that “a
final judgment of conviction bars the convicted defendant from raising and litigating in
any proceeding, except an appeal from that judgment, any [claim] that was raised or
could have been raised by the defendant at the trial which resulted in that judgment of
conviction or on an appeal from that judgment.”
Blanton at ¶ 91, quoting
Perry at 180.
As applied to due process claims in postconviction, “res judicata precludes only those …
* claims that could have been developed during the trial proceedings.”
Blanton at ¶ 93.
Thus, if the trial court finds, on the facts of a case, that “the basis for [the petitioner’s]
due process claim was known to [the petitioner] at the time of trial and could have been
fully litigated at that time,” the court can summarily dismiss the claim as barred by res
judicata.” Id. at ¶ 28, 94, quoting State v. Lester,
41 Ohio St.2d 51, 55, (1975). On the
other hand, when a petition alleges a due-process violation based on, for example, “the
state’s wrongful concealment of evidence beneficial to the defense, and that violation was
not discovered until after trial, res judicata is no bar to the claim.” Id. at ¶ 93.
{¶ 21} Special rules govern the application of res judicata to postconviction claims
of ineffective assistance of counsel. Res judicata “does not bar a postconviction
ineffective-assistance-of-counsel claim when either (1) the petitioner had the same
attorney at trial and on appeal or (2) he must rely on evidence outside the trial record to
establish his claim for relief. … The converse is that when the petitioner had a new
11.
attorney on appeal and the claim could have been litigated based on the trial record, res
judicata applies and the postconviction claim is barred. (Emphasis added.) Blanton at ¶
2, citing State v. Cole,
2 Ohio St.3d 112, 113-114 (1982) (Post-conviction relief petitions
raising claims of ineffective assistance of counsel pose “unique challenges.”). The
rationale for limiting the application of res judicata is that “when a defendant must rely
on his attorney to develop the record or use evidence, and the attorney fails to do so, there
is no other way for the defendant to establish the attorney’s deficient performance except
by presenting evidence outside the record.”
Id. A postconviction claim of ineffective
assistance of counsel that relies upon competent evidence outside the record is “generally
… sufficient, if not to mandate a hearing, [then] at least to avoid dismissal on the basis
of res judicata.”
Blanton at ¶ 29, 31, quoting
Cole at 114.
{¶ 22} In this case, we note that Clinton obtained new counsel to represent him on
appeal. We discuss res judicata in greater detail below, and in the context of Clinton’s
various due process and ineffective assistance of counsel claims.
B. Findings of fact, conclusions of law, and the need for specificity in death
penalty cases.
{¶ 23} If the trial court dismisses a petition, it “shall make and file findings of fact
and conclusions of law with respect to such dismissal.” R.C. 2953.21(D). The statute
was amended in 2017 with respect to petitions “filed by a person who has been sentenced
to death,” such that “the findings of fact and conclusions of law shall state specifically the
reasons for the dismissal of the petition and of each claim it contains.” (Emphasis
12.
added.) Id.; see also R.C. 2953.21(H) (“If the court does not find grounds for granting
relief, it shall make and file findings of fact and conclusions of law and shall enter
judgment denying relief on the petition. If the petition was filed by a person who has
been sentenced to death, the findings of fact and conclusions of law shall state
specifically the reasons for the denial of relief on the petition and of each claim it
contains.”).
{¶ 24} “The obvious reasons for requiring findings are … to apprise petitioner
of the grounds for the judgment of the trial court and to enable the appellate courts to
properly determine appeals in such a cause.” (Internal quotation eliminated.) State v.
Mapson, 1 Ohio St.3d 217, 219 (1982), overruled on other grounds in State ex rel.
Penland v. Dinkelacker,
2020-Ohio-3774. “A trial court need not discuss every issue
raised by appellant or engage in an elaborate and lengthy discussion in its findings of fact
and conclusions of law. The findings need only be sufficiently comprehensive and
pertinent to the issue to form a basis upon which the evidence supports the conclusion.”
Calhoun at 291–292; see also, State v. Ketterer,
2017-Ohio-4117, ¶ 34 (12th Dist.)
(Findings of fact and conclusions of law should be “clear, specific and complete.”).
C. Standard of Review
{¶ 25} “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-of-
discretion standard.” State v. Hatton, 2022-Ohio-3991, ¶ 38, citing State v. Gondor,
2006-Ohio-6679, ¶ 51-52, 58. “The term ‘abuse of discretion’ connotes more than an
13.
error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore,
5 Ohio St. 3d 217, 219 (1983). “Applying the
wrong legal standard in a postconviction proceeding is also reversible error under an
abuse-of-discretion standard.” Bunch,
2022-Ohio-4723 at ¶ 25, citing
Hatton at ¶ 29.
When the trial court summarily denies a petition on purely legal grounds, such as res
judicata, our review is de novo. State v. Boaston,
2021-Ohio-360, ¶ 44 (6th Dist.).
IV. CLINTON’S GROUNDS FOR RELIEF
{¶ 26} Clinton raised 66 grounds for relief in his petition.1 The trial court
dismissed the petition, in toto, finding that his claims were either barred by res judicata or
that they failed to allege substantive grounds for relief. Clinton appeals the dismissal of
all 66 grounds.
{¶ 27} Clinton’s primary challenge in many of his assignments of error is the
complete absence, or adequacy of the trial court’s findings of fact and conclusions of law.
In many instances, we agree with Clinton, and—as to those claims—we remand with the
instruction that the trial court rule with the specificity required by R.C. 2953.21(D). In
some instances, we find that the trial court applied the wrong legal standard and that
Clinton is entitled to a “prompt hearing on the issues.” R.C. 2153.21. We find that the
trial court’s dismissal of some grounds for relief was proper.
1
In all, Clinton presented 67 grounds for relief, but he withdrew G/R. No. 42.
14.
{¶ 28} The chart, set forth below, describes each ground for relief (“G/R No.”) and
indicates how the trial court ruled or if it failed to rule (designated as “N/A”), and the
assignment of error (“A/E No.”) containing each ground for relief, and our findings and
disposition.
Trial Court's A/E
Ground for Relief Findings No. Our Findings Disposition
Inadequate Findings
of Fact and
Conclusions of Law
1. Brady Claim Denied 2 ("F&C") Remand
2. Brady Claim Denied 2 Inadequate F&C Remand
3. Brady Claim Denied 2 Inadequate F&C Remand
4. Ineffective
Assistance of Trial
Counsel ("IATC") - trial
phase N/A 4 Failure to rule Remand
5. IATC-trial phase N/A 4 Failure to rule Remand
6. IATC-trial phase N/A 4 Failure to rule Remand
7. IATC-trial phase N/A 4 Failure to rule Remand
8. IATC-trial phase N/A 4 Failure to rule Remand
9. IATC-trial phase N/A 4 Failure to rule Remand
10. IATC-trial phase N/A 4 Failure to rule Remand
11. IATC-trial phase N/A 4 Failure to rule Remand
12. IATC-trial phase N/A 4 Failure to rule Remand
13. IATC-trial phase N/A 4 Failure to rule Remand
14. IATC-trial phase N/A 4 Failure to rule Remand
15. IATC-trial phase N/A 4 Failure to rule Remand
16. IATC-trial phase N/A 4 Failure to rule Remand
17. IATC-trial phase N/A 4 Failure to rule Remand
18. IATC-trial phase N/A 4 Failure to rule Remand
19. IATC-trial phase N/A 4 Failure to rule Remand
20. IATC-trial phase N/A 4 Failure to rule Remand
21. IATC-trial phase N/A 4 Failure to rule Remand
22. IATC-trial phase Denied 4 Incorrect standard Remand
15.
Trial Court's A/E
Ground for Relief Findings No. Our Findings Disposition
23. IATC-trial phase N/A 4 Failure to rule Remand
24. IATC-trial phase Denied 4 Incorrect standard Remand
25. IATC-trial phase Denied 4 Incorrect standard Remand
26. Due Process: DNA N/A 8 Failure to rule Remand
IATC-trial phase N/A 4 Failure to rule Remand
27. IATC-trial phase Denied 4 Incorrect standard Remand
28.Due Process:
Involuntary Statement Res judicata 10 Affirm
29. IATC-trial phase Res judicata 4 Incorrect standard Remand
30. IATC: Cumulative
Error Denied 4 Remand
31. Actual innocence Denied 3 Affirm
32. Due Process:
Waiver Res Judicata 12 Affirm
33. IATC-mitigation Denied 5 Remand
34. Due Process:
Waiver Res Judicata 12 Affirm
35. IATC-mitigation Denied 5 Inadequate F&C Remand
36. IATC-mitigation Denied 5 Inadequate F&C Remand
37. IATC-mitigation Denied 5 Inadequate F&C Remand
38. IATC-mitigation Denied 5 Inadequate F&C Remand
39. IATC-mitigation Denied 5 Inadequate F&C Remand
40. IATC-mitigation Denied 5 Inadequate F&C Remand
41. IATC-mitigation Denied 5 Inadequate F&C Remand
42. (Withdrawn) N/A
43. IATC-mitigation Denied 5 Inadequate F&C Remand
44. IATC-mitigation Denied 5 Inadequate F&C Remand
45. IATC-mitigation Denied 5 Inadequate F&C Remand
46. IATC-mitigation Denied 5 Inadequate F&C Remand
47. IATC: Cumulative
Error Denied 5 Remand
48. Fair Trial Res Judicata 6 Affirm
49. IATC-trial phase Res judicata 4 Affirm
50. R.C. 2953.21 Denied 15 Affirm
51. Sentencing Res judicata 13 Affirm
52. IATC-mitigation Res judicata 5 Affirm
16.
Trial Court's A/E
Ground for Relief Findings No. Our Findings Disposition
53. D.P.: Cumulative
Error Denied 14 Remand
54. IATC-trial phase N/A 4 Failure to rule Remand
55. IATC-mitigation Denied 5 Inadequate F&C Remand
56. IATC-mitigation Denied 5 Inadequate F&C Remand
57. IATC-trial phase N/A 4 Failure to rule Remand
58. Brady Claim Denied 2 Inadequate F&C Remand
59. IATC-trial phase N/A 4 Failure to rule Remand
60. IATC-trial phase N/A 4 Failure to rule Remand
61. IATC-both phases Denied 5 Inadequate F&C Remand
62. Due Process: Chain
of Custody N/A 9 Failure to rule Remand
IATC-trial phase N/A 4 Failure to rule Remand
63. Fair Trial Res Judicata 6 Affirm
64. Fair Trial Res Judicata 6 Affirm
65. IATC-trial phase N/A 4 Failure to rule Remand
Fair Trial Res Judicata 7 Affirm
66. IATC-trial phase N/A 4 Failure to rule Remand
67. Due Process:
Cumulative Error Denied 11 Remand
V. BRADY v. MARYLAND CLAIMS—G/R 1-3; 58
{¶ 29} In his second assignment of error, Clinton challenges the trials court’s
denial of four postconviction claims—G/R Nos. 1, 2, 3, and 58—which alleged that the
state violated Brady v. Maryland, 373 U.S. 83 (1963).
{¶ 30} Generally, Brady imposes on the government “an obligation to turn over
evidence that is both favorable to the defendant and material to guilt or punishment.”
State v. Osie, 2014-Ohio-2966, ¶ 153. There are three components of a “true Brady
violation”: (1) the evidence “must have been suppressed by the State, either willfully or
17.
inadvertently;” (2) “[t]he evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching;” and (3) “prejudice must have
ensued”—i.e., the evidence was material. State v. Thompson,
2022-Ohio-2438, ¶ 169
(6th Dist.), quoting Strickler v. Greene,
527 U.S. 263, 281-282 (1999).
{¶ 31} In his petition, Clinton alleged that the state violated Brady v. Maryland by
suppressing evidence pertaining to two distinct alternative suspect theories. That is,
Clinton alleged that Heather Jackson’s murder was drug-related, in response to her
having become a “snitch” or that it was perpetrated by a former boyfriend who was
overheard threatening to kill Jackson. Clinton claims that the state suppressed the
following four pieces of evidence—which he obtained in postconviction—that supported
those theories:
Sandusky Police Incident Report 20-12010834. This report
documents a traffic stop and vehicle search by police of Heather Jackson’s
vehicle on August 30, 2012, one week before her death. According to the
report, suspected drugs were found during the search. And later, at the
police station, Jackson “advised [that] she wanted to work with detectives
in lieu of charges being filed” and that she would contact police “at a later
date.” (G/R No. 1)
Police Cruiser Videos. Police cruiser videos that recorded
conversations by Sandusky police officers “in front of the Jackson home,
18.
immediately after the discovery of the bodies” were also suppressed.
According to Clinton, the videos reveal conversations by police officers
indicating that Jackson “had agreed to snitch on several local drug dealers,
and that Jackson’s own brother, Nick Fee, had told these drug dealers that
Jackson was going to snitch on them.” Clinton argues that the withheld
evidence confirmed “Jackson’s ‘snitching’ arrangement” with police, and
without it, he was deprived of an opportunity to show “a possible motive
for the Jackson family killings.” (G/R No. 58).
Travis Nickle phone records. Clinton alleges that “Travis Nickle,
in particular—had the motivation to commit the Jackson murders.” Clinton
argues that Nickle’s phone records showed unusual and “pervasive
telephone contact” between Nickle and Jackson throughout the night and
early morning of Jackson’s murder, including calls initiated by Nickle
“after Clinton is known to have departed Jackson’s home.” (G/R No. 3).
Erie County Sheriff’s Office Incident Report. Separately, Clinton
argues that Jeremy Griggs “may have … murdered [Jackson and her
children] because [Jackson] was threatening [to expose Griggs as] the
alleged father of her children.” According to the police report, two days
after the murders, a cable television installer came forward to report that,
while working in Grigg’s home in August of 2012, he witnessed Griggs
19.
threaten to kill Jackson and then brandish a handgun in reaction to
Jackson’s claim that she intended to seek paternity testing and child support
from him. (G/R No. 2)
{¶ 32} In its decision, the trial court stated, correctly, that “Grounds for Relief 1-3
and 58 raise [Brady] claims.” In support of its decision to deny those claims, the trial
court then reviewed other evidence that “inculpated” Clinton as the sole perpetrator,
notably DNA evidence and Clinton’s statements to police and to his mother. Conversely,
the court also concluded that “[n]one of the information in the police reports exculpates
Clinton as the rapist and murderer of Heather and her children. None of the information
in the police reports inculpates any perpetrator other than Clinton himself.” (Emphasis
added.) J.E. at 13. And, it concluded as a matter of law that “none of the information in
the police reports” was exculpatory or impeaching, and therefore, the evidence did not
constitute “Brady evidence.” (Emphasis added.) J.E. at 14.
{¶ 33} Upon review, the trial court made no specific reference to any of the pieces
of evidence identified in G/R Nos. 1, 2, 3 and 58. In particular, the judgment entry makes
no mention of “dash cam videos” or Travis Nickle’s cellphone records, which are the
subjects of G/R Nos. 58 and 3, respectively. And, although the trial court did make
findings and conclusions with respect to “police reports,” it is clear that the court was not
referring to the police reports identified in G/R Nos. 1 and 2, inasmuch as the court
described them as “police reports about the Hanson brothers, Travis Nickle, and their
circle of friends that included Heather.” J.E. at 13. That does not describe, and cannot be
20.
said to relate to Sandusky Police Incident Report 20-12010834, which documents
Heather Jackson’s traffic stop and which is the basis of G/R No. 1. According to that
report, Jackson was alone at the time she was pulled over, and neither the “Hanson
brothers” nor “Travis Nickle” were mentioned therein. Likewise, the trial court made no
findings or conclusions, relative to Brady, regarding Clinton’s other, alternative theory,
i.e. that Jeremy Griggs murdered Heather Jackson. The judgment entry makes no
reference to Jeremy Griggs or the Erie County Sheriff’s Report, relative to Brady or to
G/R No. 2.
{¶ 34} Whether evidence is “favorable” under Brady requires a court to evaluate
the undisclosed evidence “item by item” to determine whether it is either exculpatory or
impeaching. “As the U.S. Supreme Court [has] recognized, ‘there is no other way.’”
Thompson, 2022-Ohio-2438, ¶ 176 (6th Dist.) quoting Kyles v. Whitley,
514 U.S. 419,
437 (1995) (“We evaluate the tendency and force of the undisclosed evidence item by
item; there is no other way.”). The problem in this case is that—while the trial court
concluded that the undisclosed evidence was neither exculpatory nor impeaching and
therefore not “favorable evidence” under Brady—it failed to address the particular
evidence identified by Clinton in any of his claims. We find, therefore, that the trial court
failed to evaluate the evidence “item by item.”
{¶ 35} “In order for an appellate court to determine the basis for judgment, the
findings of fact and conclusions of law should respond to all material or determinative
issues in the case.” State v. Ketterer, 2017-Ohio-4117, ¶ 34 (12th Dist.) Here, we find
21.
that the trial court’s findings and conclusions are inadequate as to G/R Nos. 1, 2, 3, and
58 because they fail to address the material and determinative issues presented by Clinton
in those claims. Therefore, on this limited basis, we sustain Clinton’s second assignment
of error and remand for findings and conclusions as to those grounds for relief.
VI. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
{¶ 36} The Sixth Amendment of the United States Constitution provides that “[i]n
all criminal prosecutions, the accused shall enjoy the right to … have the Assistance of
Counsel for his defence.” This right includes “the right to effective counsel – which
imposes a baseline requirement of competence on whatever lawyer is chosen or
appointed.” United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006). Ohio’s
constitution grants a corresponding right, and Ohio evaluates ineffective assistance
claims under the same standards that federal courts use. See, e.g., State v. Worley, 2021-
Ohio-2207, ¶ 95.
{¶ 37} “To establish that trial counsel was ineffective, a defendant must show that
counsel’s performance was deficient and that the deficient performance prejudiced the
defendant.” State v. Bunch, 2022-Ohio-4723, ¶ 26, citing Strickland v. Washington,
466
U.S. 668, 687 (1984). “Regarding the prejudice prong, the defendant must prove that
there is a ‘reasonable probability’ that counsel’s deficiency affected the outcome of the
defendant’s proceedings.”
Id., quoting
Strickland at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.
22.
{¶ 38} However, to be entitled to a hearing, a petition for postconviction relief
“need not definitively establish counsel’s deficiency or whether [the petitioner] was
prejudiced by it.” Id. at ¶ 27. Instead, the petition need only be “sufficient on its face to
raise an issue” as to whether the petitioner was deprived of effective assistance and the
claim “depends on factual allegations that cannot be determined by examining the record
from [the petitioner’s] trial.” Id. A trial court errs in “in holding the defendant to ‘the
standard of proving that the outcome of the proceedings would have been different but
for counsel’s deficient performance.’” (Emphasis in original) State v. Wright, 2023-
Ohio-2895, ¶ 35 quoting Bunch at ¶ 28 (“[E]mphasizing” that the court’s “focus[] [was]
on the standard for holding a hearing on a postconviction petition, not the standard for
ultimately granting relief on the petition.”).
{¶ 39} In this case, Clinton alleges that he was deprived of effective assistance of
counsel during the trial and mitigation phases of his case, which he raises in assignments
of error four and five, respectively. We address the former claims first.
A. Trial-Phase Claims of Ineffective Assistance of Counsel
{¶ 40} Clinton raised 36 claims of ineffective assistance of counsel during the trial
phase. As to a majority of them, the trial court failed to make any findings of fact or
conclusions of law, requiring their remand.
{¶ 41} As to the remaining claims, the trial court determined that they were either
barred by res judicata or that they failed on the merits, i.e. that Clinton failed to show that
23.
he was prejudiced by counsel’s alleged defective performance. Because we find that the
trial court applied the wrong legal standards, we remand—with one exception—those
claims also.
1. Failure to rule—G/R Nos. 4-21, 23, 26, 54, 57, 59, 60, 62, 65, and 66
{¶ 42} The judgment entry incorrectly characterizes many ineffective assistance of
counsel claims as Brady claims. See J.E. at 11 (“FINDINGS OF FACT AND
CONCLUSIONS OF LAW REGARDING BRADY CLAIMS (CLAIMS 1 THROUGH 21,
CLAIM 23, CLAIM 54, CLAIM 57, CLAIM 58, CLAIM 59, CLAIM 60).”) (Emphasis
added.) As just discussed—in response to Clinton’s second assignment of error—only
G/R Nos. 1-3 and 58 were Brady claims. Moreover, the discussion that follows that
heading relates entirely to the issue of whether Clinton established any viable claims
under Brady. It makes no findings or conclusions, nor can the judgment be construed as
having made findings or conclusions, relative to the ineffective assistance claims raised
in G/R Nos. 4-21, 23, 54, 57, 59, or 60. Moreover, no further mention is made of those
claims anywhere in the judgment, explicitly or implicitly. Therefore, we remand the trial
court’s judgment, as to those grounds for relief, for findings and conclusions.
{¶ 43} Likewise, although the trial court made mention, it ultimately failed to
make any ruling as to G/R Nos. 26, 62, 65, and 66. Thus, in G/R No. 26, Clinton argued
that trial counsel was ineffective for not objecting to the state’s failure to comply with the
“DNA Court Order.” In its judgment entry, the trial court made no findings or
conclusions with regard to that claim, notwithstanding its caption that Clinton “fail[ed to
24.
show deficient performance of trial counsel [and prejudice] as to claim … 26.” J.E. at
16-17. Given the lack of any reference in the judgment to the DNA court order or the
consumption of DNA, we find that the trial court did not make any findings with regard
to G/R No. 26.
{¶ 44} In G/R No. 62, Clinton argued that his counsel was ineffective for failing to
ensure that the chain-of-custody of all admitted crime scene evidence was not broken,
undocumented or unproven. Upon review, the trial court clearly described Clinton’s
legal arguments. See J.E. at 17. However, its findings and conclusions are limited to
“crime scene” evidence only. That is, there is no mention of “swabbings,” nor are there
findings or conclusions relative to Clinton’s due process or ineffective assistance
arguments relative to swabbings. We remand the judgment with respect G/R No. 62 for
findings and conclusions.
{¶ 45} In G/R No. 65, Clinton alleges that the absence of nearly any voir dire on
the subject of race violated his constitutional right to a fair trial and to effective counsel.
Upon review, the trial court issued findings and conclusions with regard to the due
process claim only. See J.E. at 10. Accordingly, we remand with respect to Clinton’s
ineffective assistance of counsel claim.
{¶ 46} In G/R No. 66, Clinton argued that his counsel was ineffective for failing to
investigate and cross-examine the police regarding the clothing that Clinton was wearing
when he was apprehended. The trial court misidentified G/R No. 66 as a claim “relative
to the defense not calling to the witness stand its own crime scene evidence.” But, it
25.
made no findings or conclusions as to the merits of the actual claim. We remand the trial
court’s judgment as to G/R No. 66 for findings of fact and conclusions of law.
2. Incorrect Standard Applied by the Trial Court
{¶ 47} Here, we address claims asserted by Clinton that counsel was ineffective
for failing to retain expert witnesses during his trial. “When the core of the state’s case
against a defendant involves evidence that the jury cannot properly understand without
the assistance of expert testimony, the failure to engage a competent expert can constitute
deficient performance.” Bunch, 2022-Ohio-4723, at ¶ 40 citing Hinton v. Alabama,
571
U.S. 263, 273 (2014). “And when the core of a defendant’s claim or defense turns on
evidence that cannot be properly provided to a jury without the use of expert testimony,
the failure to engage experts can also constitute deficient performance.”
Id., citing State
v. Herring,
2014-Ohio-5228, ¶ 73-79, 80.
{¶ 48} As to each of these claims, the trial court found that Clinton failed to show
deficient performance or prejudice for counsel’s failure to secure expert witnesses at trial.
As set forth below, we find that the trial court erroneously held Clinton “to the standard
of proving that the outcome of the proceedings would have been different but for
counsel’s deficient performance.” (Internal quotation omitted.) Bunch. at ¶ 35. Because
Clinton did not have to definitively prove deficiency or prejudice, we reverse the trial
court’s decision as to those claims, and we further find that Clinton established a right to
a hearing. Id. at ¶ 29.
26.
a. Failure to retain a qualified forensic pathologist: G/R Nos. 22 and
24
{¶ 49} In his petition, Clinton argued that counsel was ineffective for failing to
retain a qualified forensic pathologist who would have assisted the defense in (1)
challenging the state’s use of “other acts” evidence under Evid.R. 404(B) and (2) in
cross-examining a police detective who presented that evidence. See G/R Nos. 22 and
24.
{¶ 50} The evidence at issue involved the 1997 death of Misty Keckler. Clinton
pled guilty, was convicted of involuntary manslaughter and served time in prison for
Keckler’s death. Prior to trial—in this case—the state gave notice that it intended to
present evidence relating to the Keckler’s death, for the purpose of proving the identity of
the killer of the Jackson family and to prove the identity and modus operandi of Clinton
when committing a sexual assault of E.S. Other-acts evidence is admissible to prove
identity through a certain modus operandi only if it is “related to and share[s] common
features with the crime in question.” State v. Lowe, 69 Ohio St.3d 527, 531 (1994). Trial
counsel objected to the use of Evid. R. 404(B) evidence. But, the trial court found that
the probative value of the Keckler evidence was not substantially outweighed by the
danger of unfair prejudice and allowed the evidence to be admitted.
{¶ 51} At trial, the state called Fostoria Police Detective Michael Clark (Ret.),
who investigated Keckler’s homicide, to testify. Det. Clark testified that Keckler’s body
had ligature marks on her neck, that her hands were bound behind her back, and that her
ankles were bound together. He further testified that it was clear that Keckler’s killer had
27.
bound her hands and ankles after she died, based upon the absence of bruising to those
areas. Finally, Det. Clark testified that Clinton had admitted to having sexual contact
with Keckler. See Clinton, 2017-Ohio-9423, at ¶ 102. After Det. Clark testified, trial
counsel moved for a mistrial, which was denied.
{¶ 52} Attached to Clinton’s petition for postconviction relief was an affidavit
from Carl J. Schmidt, M.D., a “subspecialist in forensic pathology.” Dr. Schmidt
reviewed Keckler’s autopsy, and he concluded that, based upon the location of the
ligature marks on Keckler’s neck and shoulders, the manner of death was “inconsistent
with strangulation.” In his opinion, Keckler—whose “nude body was found face down in
the bathtub”—died by drowning. Clinton at ¶ 101. Based upon that finding, Dr.
Schmidt opined that “the injuries found on Misty Keckler are different in kind from the
injuries seen on [the Jackson family].”
{¶ 53} In G/R No. 22, Clinton argued that, if trial counsel had retained a qualified
expert, the defense could have more effectively challenged the state’s theory that
Keckler’s death was part of a modus operandi and therefore “rebutted the appropriateness
of the [state’s] use of the evidence as other acts evidence.” In G/R No. 24, Clinton
complained that trial counsel asked “only” one question while cross-examining Detective
Clark. He claimed that, if the defense had the assistance of an expert like Dr. Schmidt,
they could have undermined Clark’s “unqualified opinion[]” testimony that the manner of
Keckler’s death was part of a “modus operandi.”
28.
{¶ 54} First, we note that Clinton’s claims regarding trial counsel’s failure to
retain and to present the testimony of an expert witness was based on evidence—Dr.
Schmidt’s affidavit—that was not included in the trial record. Thus, his claim could not
have been meaningfully reviewed on direct appeal and is not barred by res judicata.
Blanton, 2922-Ohio-3985, at ¶ 67.
{¶ 55} Indeed, the trial court reviewed the merits of Clinton’s claims, finding that
Clinton failed to establish a claim of ineffective assistance of counsel, under either prong
of the Strickland test, i.e. that his counsel’s performance was deficient, and (2) that such
deficient performance prejudiced the defense. Id. at 687. Specifically, the trial court
ruled that trial counsel “had no professional obligation to revisit the cause of death of
Misty Keckler by way of a defense expert forensic pathologist … where the state did
not offer an expert forensic pathologist relative to the cause of death of Misty Keckler.”
J.E. at 15. The trial court also held Clinton to the standard of proving that the outcome of
the proceedings would have been different but for trial counsel’s performance, when it
concluded that “Clinton fails to show prejudice as to claim 22 and claim 24 [in that] the
DNA evidence … conclusively shows that Clinton raped and murdered the minor
female child, [which] eliminates any outcome determinative significance to the medical
details of the asphyxiation death of Misty Keckler.” J.E. at 15.
{¶ 56} To warrant a hearing, Clinton did not “not [have to] definitively establish
counsel’s deficiency or whether [he] was prejudiced by it.” Id. at ¶ 27. In Bunch, the
petitioner alleged that his trial counsel was ineffective for failing to procure an
29.
eyewitness-identification expert to analyze the case and testify at trial. Attached to the
petition was an affidavit from an expert witness who opined that the eye-witness
testimony presented at trial was likely “inaccurate.” The trial court rejected the claim,
without holding a hearing, finding that trial counsel’s failure to use an expert and instead
to rely on cross examination did not constitute ineffective assistance of counsel as a
matter of law and that an expert would not have altered the trial’s outcome. The court of
appeals affirmed. Id. at ¶ 17. In remanding for a hearing, the Ohio Supreme Court
found that Bunch’s petition stated a substantive ground for relief because he “provided
evidence that, if true, set out a prima facie case that he was deprived of his constitutional
right to the effective assistance of counsel.” Id. at ¶ 45; Accord, State v. Carswell, 2023-
Ohio-4574, ¶ 46 (6th Dist.) (Remanding for a hearing where the trial court rejected the
arguments raised in petition as “second guessing the strategic decisions of trial counsel”
and “armchair quarterbacking” and also “incorrectly failed to distinguish between
standards that are appropriate in direct appeals and those that are to be applied when
determining whether a postconviction hearing should be held.”).
{¶ 57} Similarly here, we find that trial court held Clinton to an erroneously high
standard and that an evidentiary hearing is necessary as to the claims set forth in G/R
Nos. 22 and 24.
b. Failure to retain a DNA statistician: G/R No. 25
{¶ 58} In his petition, Clinton argued that because the case “rose and fell” on
DNA evidence, his trial counsel was ineffective for failing to “confront” that evidence
30.
with a DNA statistician, who would have assisted the defense in cross-examining the
state’s expert and presenting expert testimony under direct examination. See G/R No. 25.
In support, Clinton attached an affidavit from Dan Krane, Ph.D. a self-described “expert
witness” who uses “computer-based tools to evaluate DNA evidence associated with
criminal investigations.” Among his assertions, Dr. Krane averred that “Allelic/locus
drop out must be invoked in order to include Curtis Clinton as a potential contributor to
the DNA testing results obtained from the anal swab of [C.J.];” that “[t]here is no
generally-accepted method of attaching a statistical weight to a mixed sample where
allelic/locus dropout may have taken place;” and “[u]ntil a generally-accepted method of
identifying the probability of allelic dropout is established, the statistical weight
associated with partial mixtures can best be described as being ‘inconclusive.’” Clinton
argues that the failure to “obtain[] the services’ of a qualified DNA statistician cannot be
considered a “strategic” decision in the absence of a “full investigation,” which was not
conducted in this case. And, Clinton claims, the absence of an expert “clearly
prejudiced” him, as evidenced by at least one juror’s sworn affidavit, also attached to the
petition, in which the juror averred that “[i]f there was any doubt presented as to the
DNA, I never would have signed a death warrant.”
{¶ 59} In its decision, the trial court found that Clinton “fail[ed] to show deficient
performance, … especially where Clinton had his own DNA expert at trial and offers
no evidence why the [expert] was not called to testify.” (Emphasis added.) J.E. at 17.
The court further found that Clinton failed to show that he was prejudiced by the absence
31.
of defense-expert DNA testimony because the evidence—that was presented—
conclusively showed that Clinton “raped and murdered the minor female child [which]
eliminates any outcome-determinative significance to scientific nuances in the collection
and analysis of DNA evidence [as] shown in … Dr. Krane’s [affidavit].” Id.
{¶ 60} Again, the court erred in failing to apply the proper standard for “simply
obtaining a hearing on a petition for post-conviction relief.” State v. Wright, 2023-Ohio-
2895, ¶ 2 (2d Dist.). Clinton did not have to definitively prove deficiency or prejudice to
obtain a hearing. Id. at ¶ 78. Rather, the petition need only be sufficient on its face to
raise issues about whether the petitioner was deprived of effective assistance of counsel.
We find that Clinton’s petition, as set forth in G/R No. 25, stated a substantive ground for
relief. Clinton presented evidence that, if true, set out a prima facie case that he was
deprived of his constitutional right to the effective assistance of counsel. Accord
Carswell, 2023-Ohio-4574, at ¶ 56 (6th Dist.). For this reason, the trial court erred in
rejecting Clinton’s G/R Nos. 25 without a hearing.
c. Failure to utilize a crime scene expert: G/R No. 27
{¶ 61} Clinton alleges that his counsel was also ineffective for failing to “use a
crime scene expert to challenge the State’s case.” See G/R No. 27. Prior to trial, defense
counsel “retained” crime scene expert and reconstructionist, Gary Rini, M.F.S., but did
not present his testimony at trial. Clinton complains that Dr. Rini should have been
called to challenge the state’s evidence and for use in cross-examining state witnesses. In
his affidavit, submitted with Clinton’s petition, Dr. Rini offers his expert opinion
32.
regarding the mishandling of evidence in this case, violations of police protocols which
“compromised the integrity of the crime scene,” and the improper cataloguing of
evidence and unsigned police reports. Clinton argues that trial counsel’s decision to
forgo presenting Dr. Rini’s testimony cannot be considered strategic.
{¶ 62} The trial court denied the claim, concluding that it was barred by res
judicata and “[t]o the extent that [is not],” Clinton failed to show deficient performance
or prejudice. That is, it found that because the evidence that “inculpated Clinton” was
recovered during the autopsies and not from the crime scene, trial counsel “could
properly conclude that [Clinton’s case] would not materially benefit from testimony by a
‘crime scene expert.’” As for prejudice, the court found that Clinton’s “admission to
being physically present with Heather and her children during the time period within
which the crimes could have taken place, in context of the DNA evidence that
conclusively shows, … that Clinton raped and murdered the minor female child,
eliminates any outcome-determinative significance to crime scene matters shown in post-
conviction expert Gary Rini’s [report].” J.E. at 19.
{¶ 63} First, we note that, contrary to the trial court’s findings, Dr. Rini did offer
expert testimony relative to the collection of DNA evidence, i.e. evidence that—in the
trial court’s words—“conclusively linked Clinton to the rapes and murders. Dr. Rini’s
affidavit notes an “altered” consent-to-search form, regarding the “collection of DNA
swabs from the penis of Curtis Clinton.” Specifically, Dr. Rini observed that the number
of swabs “collected initially” was documented as “2” but that number was crossed out
33.
and replaced with the number “1.” The change was made “without attribution as to the
source of this alteration,” in violation of “FBI guidelines.” Dr. Rini opined that, in the
absence of an “accounting or attribution as to the source of this alteration … [there
was] no reliable accounting as to the actual number of swabs collected, nor to the chain
of custody of the DNA swabs collected [in this case].” We find that the trial court erred
in presuming that trial counsel’s decision not to present Dr. Rini’s testimony was
strategic and further erred in requiring that Clinton definitively prove that the outcome of
this case would have been different. Bunch at ¶ 36 (“In the present context of
postconviction litigation, it is possible and appropriate to question whether a trial
counsel’s decisions [not to call an expert] were in fact deliberate and strategic and
whether strategic decisions were reasonable ones.”).
{¶ 64} In sum, we find that the trial court applied the wrong legal standard in G/R
Nos. 22, 24, 25 and 27, which is reversible error under an abuse of discretion standard.
Bunch at ¶ 25, citing State v. Hatton
2022-Ohio-3991, ¶ 29. We further find that each of
those claims is sufficient on its face to raise an issue regarding whether Clinton was
deprived of the effective assistance of counsel, and that each claim depends on factual
allegations that cannot determined by examining the trial record. Accordingly, we
conclude that a hearing is necessary as to G/R Nos. 22, 24, 25 and 27.
34.
3. Res Judicata
{¶ 65} The trial court dismissed two trial-phase claims of ineffective assistance of
counsel on the basis that they were barred on res judicata grounds. See G/R Nos. 29 and
49. 2
{¶ 66} As the first step of our Blanton analysis, we consider whether Clinton
introduced competent evidence of ineffective assistance that is dehors the trial court
record. Blanton at ¶ 33. “Competent evidence” is evidence that is both admissible and
that tends to establish a fact at issue. State v. Allison,
2024-Ohio-872, ¶ 20 (6th Dist.),
citing Hall v. Hall,
2018-Ohio-4453, ¶ 8 (6th Dist.). If so, the court must determine if
that evidence presents substantive grounds for relief; “that is, if believed, would the
newly presented evidence—together with any evidence in the trial record—establish that
counsel was ineffective?”
Blanton at ¶ 33-34. A postconviction claim of ineffective
assistance of counsel that relies upon competent evidence outside the record is “generally
… sufficient, if not to mandate a hearing, [then] at least to avoid dismissal on the basis
of res judicata.”
Blanton at ¶ 29, 31, quoting
Cole at 114.
a. Failure to Object to the Admission of Clinton’s Police Interview: G/R No.
29
{¶ 67} In his petition, Clinton argued that trial counsel was ineffective for failing
to object to the admission of his “involuntary” statement to police. See G/R No. 29.
2
As indicated in the previous section, the trial court dismissed G/R 27 on the basis of res
judicata and “even if not” then on the merits. We have remanded G/R No. 27 for a
hearing.
35.
{¶ 68} By way of background, Clinton was admitted “as a suicidal person” to
Bellevue Hospital around 5 a.m. on Sunday, September 9, 2012, a little more than 24
hours after the murders of the Jackson family were alleged to have taken place. Clinton
at ¶ 20. Clinton remained in the hospital until the next day, September 10, 2012. That
morning, the police arrived at the hospital, and Clinton, “who was being discharged,
agreed to go with them to the Sandusky police department.” Id. During his videotaped
interview, Clinton admitted to being in Jackson’s home on the preceding “Friday night or
early Saturday morning” and that the two “had sex.” Id. He told police that “someone
else must have gone to Jackson’s home after he left.” When informed that he was the last
person to have had contact with Jackson, Clinton said, “I don't think so. I doubt it. I really
doubt it.” Clinton added, “If something happened, I don't remember it,” and he later
repeated, “I ain’t done nothing.” Id. at ¶ 25.
{¶ 69} In his direct appeal, Clinton challenged the admissibility of the video-taped
interview on different grounds, specifically that it was accompanied by inaccurate
captions, which the Ohio Supreme Court found lacked merit. See Clinton at ¶ 146-150.
{¶ 70} In his petition, Clinton included his own affidavit, in which he asserted that
he tried to commit suicide by ingesting “over 100 tablets of Tylenol” and “so much
alcohol that [his] blood alcohol level was over three times the legal limit.”
Hospitalization records, which Clinton also submitted, indicate that he was “disoriented”
and in and out of consciousness throughout the day of his admission, i.e. September 9,
2012. As for his police interview the next day, Clinton asserts that he only recalls “about
36.
15 minutes” of it, despite the fact that it lasted for “several hours.” He claims that he was
“disoriented” and did not know what he was saying. Clinton also relied on the affidavit
from Mercedes Charlton who was with Clinton in the hospital and averred that she “does
not believe that [Clinton] could have had any idea what he was saying to police.” Clinton
argues that, under these conditions, his statements to police were involuntary, and trial
counsel’s failure to challenge the admission of his statement on that basis amounts to
ineffective assistance.
{¶ 71} The trial court found that the claim was barred on res judicata grounds. It
reasoned that, “[h]ad Clinton wished to challenge the admissibility of his admissions to
the police due to mental impairment from street drugs or hospital medications he could
have done so.” J.E. at 7-8.
{¶ 72} First, we note that the trial court did not identify or refer to any of the
evidence cited by Clinton, nor did it explain why the supporting documents do not
prevent the application of res judicata, in contravention of State v. Lester. See, e.g., State
v. Ketterer, 2017-Ohio-4117, ¶ 38 (12th Dist.) (Findings and conclusions inadequate
where “the entries do not indicate [that] the trial court reviewed the documents submitted
in support of the PCR petitions, do not contain any reference to those supporting
documents, and do not explain why the supporting documents do not prevent the
application of res judicata.”).
{¶ 73} Further, because evidence of Clinton’s drug and alcohol use, and the
alleged effect they had on his police interview, are not part of the record, the issue raised
37.
by Clinton in his petition could not have been determined without evidence outside the
record. Accordingly, Clinton’s claim is not barred by res judicata. Accord Blanton (“res
judicata does not bar a postconviction ineffective-assistance-of-counsel claim when …
[the petitioner] must rely on evidence outside the trial record to establish his claim for
relief.”); State v. Nobles, 106 Ohio App.3d 246, 275 (2d Dist.1995) (“If it is the case that
Xanax could have caused Nobles to make a false confession, though it was made some
twelve hours after she ingested the drug, then counsel will have to raise the matter in a
petition for postconviction relief.”).
{¶ 74} Next, we consider whether the evidence outside the record, together with
any evidence in the record, if believed, presents substantive grounds for relief. Blanton at
¶ 33-34. “[S]ubstantive grounds for relief” exist if Clinton’s allegations are sufficient to
state an ineffective-assistance claim (i.e., that trial counsel’s representation was deficient
and that he was prejudiced as a result), and the files and records of the case do not
affirmatively disprove this claim. Id. at ¶ 24.
{¶ 75} Even when Miranda warnings are not required, a confession may be
involuntary if, under the totality of the circumstances the “‘defendant’s will was
overborne’ by the circumstances surrounding the giving of a confession.’” State v.
Petitjean, 140 Ohio App.3d 517, 526 (2d Dist.2000), quoting Dickerson v. United States,
530 U.S. 428, 434 (2000). See also, State v. Stewart,
75 Ohio App.3d 141, 147 (8th
Dist.1991) (“The lingering effects of drugs or alcohol do not render a confession
38.
involuntary in the absence of evidence that the substance has impaired the defendant’s
ability to reason.”).
{¶ 76} Here, Clinton averred that he ingested so much Tylenol and alcohol that,
more than 48-hours later, he felt “disorientated” from those substances, to the point that
he did not know what he was saying during his police interview. Of course, the mere
fact Clinton may have been impaired after his release from the hospital does not make his
confession involuntary as a matter of law. Nobles at 275. However, it may be the case
that “significant narcotic impairment would have made [his] confession inadmissible
because [it was] unreliable.”
Id.
{¶ 77} While “a trial court may judge the credibility of a supporting affidavit and
discard claims that are purely frivolous,” the trial court in this case did not acknowledge
the evidence submitted in support of Clinton’s claim, much less address its credibility.
Calhoun, 86 Ohio St.3d at 292. Curiously though, the court did find, without attribution,
that “any effects from street drugs or alcohol that had been ingested by Clinton prior to
his hospitalization would have dissipated to nothing by the time Clinton entered police
custody.” J.E. at 7.
{¶ 78} While we express no opinion as to the credibility of Clinton’s evidence, we
find that the record does not, on its face, disprove Clinton’s claim—that his statement to
police was involuntary and thus ineffective assistance not to challenge its admission. We
find that Clinton’s evidence was sufficient to avoid dismissal on the basis of res judicata
and to warrant a hearing, and we remand G/R 29 for that purpose.
39.
b. Failing to object to jurors and to renew motion for a change in venue:
G/R No. 49
{¶ 79} Clinton alleges that counsel was deficient for failing to object to jurors who
were “exposed to prejudicial pretrial publicity.” (G/R No. 49). In support, Clinton points
to voir dire proceedings, indicating that seven jurors “candidly admitted” to receiving
information from the media that Clinton was a suspect. Because this voir dire evidence
was part of the trial record, the trial court “properly concluded that the claim could have
been adjudicated on direct appeal.” Blanton at ¶ 79. (“But again, this voir dire evidence
was part of the trial record. The trial court and court of appeals properly concluded that
[counsel’s failure to move for a change of venue] could have been adjudicated on direct
appeal.”).
{¶ 80} Separately, Clinton alleges that counsel was ineffective for failing to renew
a motion for a change of venue, after voir dire had been conducted. (G/R No. 49). For
this, Clinton relied upon news articles, identified as Ex. 57, which he claims establish that
a “maelstrom of publicity” existed in Erie County.
{¶ 81} The trial court found that, because the Ohio Supreme Court “addressed and
rejected” Clinton’s change-of-venue claim—on direct appeal—his ineffective assistance
claim was barred by res judicata and “[f]urthermore” that the claim lacks merit. J.E. at
19. Because Clinton’s ineffective assistance claim is based on evidence dehors the
record, it is not—on its face—barred under res judicata. Blanton at ¶ 105.
{¶ 82} Still, we conclude that the trial court reached the correct judgment. Id. at ¶
109. That is, because we find, elsewhere in this opinion, that Clinton failed to establish a
40.
substantive right to relief as to his change-of-venue claim, his ineffective assistance of
counsel claim must similarly fail. Blanton at ¶ 110. The merits of Clinton’s change-of-
venue claim are addressed at ¶ 93 to 103. We affirm the trial court’s judgment
dismissing G/R No. 49.
B. Mitigation-Phase Claims of Ineffective Assistance of Counsel— G/R Nos.
33, 35-41, 43-46, 52, 55, 56, and 61.
{¶ 83} In his fifth assignment of error, Clinton challenges the trial court’s
dismissal of mitigation-phase claims of ineffective assistance of counsel.
{¶ 84} In his petition, Clinton alleged that trial counsel was ineffective for: failing
to ensure that his waiver—of his right to offer evidence in mitigation—was knowing and
voluntary (G/R No. 33); failing to ensure that Clinton was present at all critical
proceedings (G/R No. 35); failing to develop a “rapport” and to communicate with
Clinton (G/R No. 36); failing to present the testimony of family and friends, including
Clinton’s mother, sister, step-brother, aunt, girlfriends, friends, and nephew (G/R Nos.
37-41, 55, 61); failing to investigate and present testimony from experts in the fields of
psychology, prison, sexual abuse, neuroimaging, and neuropsychology (G/R Nos. 43-46,
56); and failing to argue that R.C. 2929.11 violates Clinton’s constitutional rights; (G/R
No. 52). The evidence offered by Clinton in support of these grounds for relief included
affidavits from those people, whom Clinton argues should have been called to testify in
mitigation.
{¶ 85} In its decision, the trial court “adopt[ed]” findings by the Ohio Supreme
Court, from Clinton’s direct appeal, that: (1) Clinton did not waive all mitigation; (2)
41.
Clinton presented mitigating evidence by way of an unsworn statement; (3) Clinton
instructed his counsel not to present any other mitigating evidence; and (4) Clinton was
evaluated by a neuropsychologist to ensure his competency. J.E. at 20, citing Clinton at
¶ 195-196. But, the trial court made no specific mention of Clinton’s postconviction
claims, except to note “the absence of evidence in the post-conviction record that would
contradict or alter this finding of fact,” i.e. that Clinton instructed his counsel not to
present any mitigating evidence on his behalf. Id. As a matter of law, the court
concluded that trial counsel’s decision not to present additional evidence in mitigation
“was not deficient [because] trial counsel competently and properly followed Clinton’s
own personal decision to limit the mitigation presentation to Clinton’s unsworn
statement.” J.E. at 21, citing State v. Ward, 2014-Ohio-426; State v. Gonzales, 2010-
Ohio-4703 (6th Dist.); Schriro v. Landrigan,
550 U.S. 465, 477 (2007).
{¶ 86} In State v. Lavender, 2021-Ohio-4274, ¶ 10 (1st Dist.), the trial court
“summarily concluded” that no ineffective assistance of counsel was demonstrated based
upon its conclusion that the supporting affidavits were “entitled to little weight” and were
“inconsequential” because, although they “provide additional background information or
potential alternative strategies for trial, [they] do not rise to the level of showing [a]
constitutional violation.”
Id. On appeal, the First Appellate District found that the trial
court’s findings of fact and conclusions of law were inadequate because they did not
“describe or discuss the substantive issues presented by, or the evidence offered in
support, of the claims.” Id. at ¶ 10, citing See State v. Issa,
2000 WL 1434159 (1st. Dist.
42.
Sept. 29, 2000) (findings of fact and conclusions of law fail to address a determinative
issue and provide a basis for a resolution of that issue”); State v. Crossley, 2020-Ohio-
6640, ¶ 35 (2d Dist.) (findings of fact and conclusions of law fail to specifically address
an ineffective-counsel claim or sufficiently explain discounting the credibility of
supporting affidavits);
Ketterer at ¶ 38 (findings of fact and conclusions of law
“generically label[ed],” then summarily denied, multiple postconviction claims and did
not indicate review of supporting evidence); State v. Guenther,
2007-Ohio-681, ¶ 8-9 (9th
Dist.) (findings of fact and conclusions of law fail to specifically address postconviction
claims).
{¶ 87} In this case, the trial court’s findings and conclusions are inadequate in the
same way, if not more so, than those in Lavender. That is, the trial court did not describe
or discuss any of the ineffective-assistance-of-counsel-in-mitigation-claims, other than to
generically label them in a heading. Additionally, there is no indication that the trial
court reviewed the evidence outside the record relied upon by Clinton, inasmuch as the
opinion contains no reference to the evidence and fails to explain why the evidence fails
to establish substantive grounds for relief. Finally, of the three cases cited as legal
precedent by the trial court, only the Landrigan case would appear to support the
purported basis upon which it denied Clinton’s claims. See Landrigan at 477 (“Because
the Arizona postconviction court reasonably determined that Landrigan ‘instructed his
attorney not to bring any mitigation to the attention of the [sentencing] court,’ … [t]he
District Court was entitled to conclude that regardless of what information counsel might
43.
have uncovered in his investigation, Landrigan would have interrupted and refused to
allow his counsel to present any such evidence. Accordingly, the District Court could
conclude that because of his established recalcitrance, Landrigan could not demonstrate
prejudice under Strickland even if granted an evidentiary hearing.”).
{¶ 88} Even where it may be said that a trial court “probably reach[es] the correct
result,” its decision must be remanded for findings and conclusions where it fails to “state
specifically the reasons for the dismissal … of each claim.” (Emphasis added.) State
v. Porter, 2021-Ohio-4630, ¶ 27 (7th Dist.) (“Despite probably reaching the correct
result, the trial court’s decision is reversed and the matter is remanded with instructions
for the trial court to issue findings of fact and conclusions of law as is required in R.C.
2953.21(H).”). This is especially true in this case, in light of the amendment to R.C.
2953.21(D) requiring that, in death penalty cases, that findings and conclusions “shall
state specifically the reasons for the dismissal of the petition and of each claim it
contains.” For these reason, we find Clinton’s fifth assignment of error well-taken, in
part, and we remand for findings and conclusions as to G/R Nos. 33, 35-41, 43-46, 55,
56, and 61.
{¶ 89} This leaves only G/R No. 52—Clinton’s mitigation-phase claim of
ineffective assistance for counsel’s failure to argue that R.C. 2929.11 violated his
constitutional rights. We find that this ground for relief was properly dismissed, in light
of our conclusion elsewhere that the underlying claim is without merit. See ¶ 137-143.
44.
VII. DUE PROCESS CLAIMS
{¶ 90} Next, we address those post-conviction claims asserting that Clinton’s right
to a fair trial and other due process rights were violated. The trial court denied most of
the claims on res judicata grounds. Res judicata precludes those due process claims that
could have been developed during the trial proceedings. Blanton, 2022-Ohio-3985, at ¶
92, 93. In Blanton, the Ohio Supreme Court specifically declined to “expand [the]
exception [to res judicata]” which would have allowed a due process claim in
postconviction to proceed, even when the alleged violation was known to the defense at
the time of trial, i.e. “to reach the merits of a claim that could have been—but was not—
fully developed during the trial proceedings.”
Id. The court found that to do so would
“upend decades of caselaw.”
Id.
{¶ 91} To warrant a hearing the petitioner bears the burden of producing evidence
dehors the record that would render the judgment void or voidable and also show that he
could not have appealed the claim based upon information contained in the original
record. State v. Spaulding, 2018-Ohio-3663, ¶ 11 (9th Dist.). The evidence dehors the
record must “demonstrate that the claims advanced in the petition could not have been
fairly determined on direct appeal based on the original trial court record without
resorting to evidence outside the record.”
Id. However, “[p]resenting evidence outside
the record does not automatically defeat the doctrine of res judicata.” (Quotation
omitted.)
Id. Rather, the evidence relied upon by a petitioner “‘must meet some
threshold standard of cogency; otherwise it would be too easy to defeat the holding of
45.
[State v. Perry] by simply attaching as exhibits evidence which is only marginally
significant and does not advance the petitioner’s claim[.]’” (Internal citations omitted.)
Id. quoting State v. Coleman,
1993 WL 74756, *7 (Mar. 17, 1993 1st. Dist.).
{¶ 92} With the above principles in mind, we address Clinton’s due process
claims.
A. Failure to grant a change of venue—G/R No. 48
{¶ 93} Clinton’s sixth assignment of error includes the argument that the trial
court abused its discretion when it failed to grant him a hearing on the issue of whether
his right to a fair trial was violated when he was denied a change of venue. See G/R No.
48. Prior to trial, Clinton filed a motion for a change of venue, arguing that Erie County
had “been saturated with extensive media coverage of the incident;” that “similar
coverage [was] likely to resume once the trial [began];” and that “media accounts …
ha[d] created a presumption of [Clinton’s] guilt that [was] widespread in the
community.” See Defendant’s Motion for a Change of Venue, 10/07/2013. Clinton’s
motion was denied, which he assigned as error in his direct appeal. See Clinton at ¶ 58-
69. The Ohio Supreme Court rejected the claim, finding no evidence of “actual
prejudice.” It further found that the publicity in the case, though “extensive and
adverse,” was not so damaging that prejudice should be presumed. Id. at ¶ 63, 69, citing
Sheppard v. Maxwell, 384 U.S. 333, 363 (1966) (Noting that “in certain rare cases,
pretrial publicity is so damaging that courts must presume prejudice even without a
showing of actual bias” but adding that the presumption “attends only the extreme case”).
46.
{¶ 94} In post-conviction, Clinton repeated his claim, i.e. that an “overwhelming
amount of pre-trial publicity and community activity” deprived him of a fair trial. See
G/R No. 48. Clinton included with his petition “copious media articles” and an affidavit
from his defense investigator, who interviewed a juror and set forth the contents of their
conversation.
{¶ 95} The trial court found that Clinton’s change-of-venue claim was barred by
res judicata because “the matter of pre-trial publicity was expressly raised on direct
appeal” and that “none of the evidence dehors the record … would have had any
material effect on the propriety of the adjudication of the claim by the Ohio Supreme
Court.” J.E. at 9.
{¶ 96} Clinton insists that, in light of the evidence outside of the record, his
postconviction claim is qualitatively different than the claim raised on direct appeal. We
review the evidence below.
{¶ 97} First though, we note that Clinton relied extensively on evidence within the
trial record. For example, Clinton asserts in his petition that “Juror 96 … followed the
Clinton investigation through the on-line version of the [Sandusky] Register and its
bloggers. Jurors 143 and 210 also admitted to following the events in the newspaper,
with Juror 210 adding that he knew Clinton ‘was a suspect in these murders.’” …. See
Petition at ¶ 420, citing Ind. VD Vol. 1, pp 62-64, 76-78; Vol. 4, pp. 537-538. As noted
by the court in Clinton’s direct appeal, jurors need not be totally ignorant about the facts
of a case. Clinton, 2017-Ohio-9423, at ¶ 67, citing Irvin v. Dowd,
366 U.S. 717, 722
47.
(1961). Further, because this evidence was available and known to Clinton and was
presented in his direct appeal, it is barred by res judicata.
Blanton at ¶ 93-94. Moreover,
Clinton’s reliance on evidence within the trial record undermines the argument that res
judicata should not apply. State v. Grate,
2023-Ohio-2103, ¶ 71 (5th Dist.).
{¶ 98} Clinton did proffer evidence outside the record, including an affidavit from
his defense investigator, Kelly Heiby, who interviewed Juror 210. See Ex. 51. Upon
review, none of the juror’s alleged remarks to the investigator relate to the issue of
pretrial publicity. Therefore, it cannot be considered as evidence in support of Clinton’s
change-of-venue claim.
{¶ 99} Finally, Clinton included approximately 200 pages of documents, which
appear to be copies of news articles, downloaded from the internet. See Ex. 57. The
articles are from various news outlets including The Sandusky Register, The Toledo
Blade, and the Fox News affiliate in Cleveland.
{¶ 100} As a preliminary point, we note that the purported news articles were not
authenticated. R.C. 2953.21(A)(1)(b) states that “[a] petitioner … may file a
supporting affidavit and other documentary evidence in support of the claim for relief.”
(Emphasis added.) The statute does not specify standards for documentary evidence.
State v. Wright, 2023-Ohio-2895, ¶ 142 (2d Dist.). However, as a general rule, a party
must properly authenticate documentary evidence as a prerequisite to admissibility,
pursuant to Evid.R. 901(A). The rule provides that “[t]he requirement of authentication
or identification as a condition precedent to admissibility is satisfied by evidence
48.
sufficient to support a finding that the matter in question is what its proponent claims.”
This is a “low threshold, which does not require conclusive proof of authenticity, but only
sufficient foundational evidence for the trier of fact to conclude that … [the evidence]
is what its proponent claims it to be.” (Citations omitted.)
Wright at ¶ 142. For the
record, we note that Clinton laid no foundation that would allow a judicial finding that
the reams of paper included with his petition are what they are purported to be, i.e. news
articles about the crimes committed in this case and the state investigation of Clinton and
his eventual trial.
{¶ 101} We reviewed every single document. Of the approximately 150 articles
included by Clinton, roughly half were published before Clinton filed his change-of-
venue motion. Because these articles were available to Clinton and could have
supported his motion, we may not consider them. State v. Bowman, 2023-Ohio-2078, ¶
15 (2d Dist.), quoting State v. Jackson,
2007-Ohio-1474, ¶ 21 (10th Dist) (“For a
defendant to avoid dismissal of the petition by operation of res judicata, the evidence
supporting the claims in the petition … must not be evidence that existed or was
available for use at the time of trial. ….”); see also, State v. Cowan,
1999 WL 699870
(12th Dist. Sept. 7, 1999) (Finding that, because jury questionnaire and newspaper
articles were part of the trial record and were considered in the trial court’s decision,
petitioner’s change-of-venue claim based on media publicity “could have been raised on
direct appeal and is barred by res judicata.”).
49.
{¶ 102} This leaves the remaining articles, i.e. those that were published after the
filing of Clinton’s motion. Strictly speaking, those articles are not evidence of pre-trial
publicity. Further, merely presenting evidence outside the record does not automatically
defeat the doctrine of res judicata.” Spaulding at ¶ 11. Rather, the evidence must meet
some “threshold standard of cogency.”
Coleman at *7. Cogent evidence is evidence that
is more than “marginally significant” and that advances a claim “beyond mere hypothesis
and a desire for further discovery.” State v. Hill,
1998 WL 320917, *1 (1st Dist. June 19,
1998). Here, Clinton refers to the purported articles “en masse,” without any particular
reference, to any particular article. Accord Grate,
2023-Ohio-2103, at ¶ 75. (Finding
that materials submitted in support of postconviction change-of-venue claim, which
included a “volume of articles from the media regarding the incident” did not meet a
threshold standard of cogency and are “merely cumulative of or alternative to evidence
presented at trial and upon appeal.”).
{¶ 103} Clinton also makes the same arguments in post-conviction as he did in his
direct appeal, i.e. that he was “regularly in the news” and that there was “voluminous”
and “continuing coverage” of the murders and his trial. But, “[r]es judicata …
implicitly bars a petitioner from ‘repackaging’ evidence or issues which either were, or
could have been, raised, in the context of the petitioner’s trial or direct appeal.”
(Quotation omitted.) State v. Bowman, 2023-Ohio-2078, ¶ 15 (2d Dist.). To overcome
the res judicata bar, the petitioner must produce new evidence that renders the judgment
void or voidable and must show that he could not have appealed the claims based upon
50.
information contained in the original record. We find that Clinton has failed to produce
any new evidence establishing that the pretrial publicity in this case was so “extreme,”
that a fair trial could not be achieved in Erie County. Skilling v. United States,
561 U.S.
358, 381 (2010). We affirm the trial court’s dismissal of G/R 48 without a hearing.
B. Failure to “admonish jurors” and to dismiss “entire first panel of
jurors”—G/R No. 63 and 64
{¶ 104} Clinton’s sixth assignment of error also includes a challenge to the
dismissal of claims asserting that his right to a fair trial was violated when the trial court
failed to dismiss the entire first panel of jurors, who were “infected with outside
information,” and when it failed to “admonish jurors not to speak about what they heard.”
See G/R Nos. 63 and 64. In support of his claims, Clinton relied upon the affidavit of his
defense investigator and two academic articles from Psychology, Public Policy, and Law.
(Exs. 51, 76 and 77).
{¶ 105} The trial court denied the claims on res judicata grounds, finding that “the
matter of pre-trial publicity was expressly raised on direct appeal” and that “none of the
evidence dehors the record … would have had any material effect on the propriety of
the adjudication of [these claims] by the Ohio Supreme Court.” J.E. at 9.
{¶ 106} Indeed, Clinton raised several “juror-bias claims” on direct appeal, all of
which the Ohio Supreme Court denied. See Clinton, 2017-Ohio-9423 at ¶ 70-93. In
finding that no error occurred, the court found that Clinton “cites nothing in the record to
demonstrate that these [juror] remarks biased or prejudiced the empaneled jurors.
51.
Generally, prejudicial effect is not presumed but must be affirmatively shown on the
record.”
Id., citing State v. Treesh,
90 Ohio St.3d 460, 464 (2001).
{¶ 107} Clinton repeats, nearly verbatim, many of his claims in post-conviction,
including that Juror No. 363 tainted the jury pool by stating “multiple times that …
Clinton had … admitted he was guilty, which was untrue” and that the trial court
“continually forgot” to instruct jurors not to discuss the case. See Petition at ¶ 546.
Clinton maintains that his claims are not precluded by operation of res judicata, because
they are supported by two academic articles from Psychology, Public Policy, and Law:
“The Media’s Impact on the Right to a Fair Trial: A Content Analysis of Pretrial
Publicity in Capital Cases,” from 2018 and “Your Bias is Rubbing Off on Me: The
Impact of Pretrial Publicity and Jury Type on Guilt Decisions, Trial Evidence
Interpretation, and Impression Formation,” from 2020. (PCR Exhibits 76 and
77). Clinton argues that these “[s]tudies show that exposure to biased media coverage
had a prejudicial impact on juror attitudes toward criminal defendants.”
{¶ 108} We find that the articles do not constitute “competent evidence” and
therefore res judicata applies. “Outside materials submitted in support of a
postconviction relief petition must adhere to the rules of evidence; unreliable documents
are not sufficient.” State v. Belton, 2023-Ohio-294, ¶ 63 (6th Dist.), citing State v.
Harris,
2008-Ohio-934, ¶ 38 (8th Dist.). “Because works of professional literature
contain statements that if introduced as evidence would fall within the definition of
hearsay, and because the Ohio Rules of Evidence … do not contain a learned-treatise
52.
exception to the hearsay rule, … such works are inadmissible as independent evidence of
the theories and opinions therein expressed.” (Quotation omitted.) Beard v. Meridia
Huron Hosp.,
2005-Ohio-4787, ¶ 23. While Ohio now has a learned-treatise exception
in Evid.R. 803(18), this rule only provides an exception to the hearsay rule when the
learned treatise is “called to the attention of an expert witness upon cross-examination or
relied upon by the expert witness in direct examination.” As provided in the comments to
Evid.R. 803, “statements in learned treatises come to the trier of fact only through the
testimony of qualified experts who are on the stand to explain and apply the material in
the treatise.” Here, the articles at issue are not relied upon by any expert. Therefore, they
are hearsay and do not constitute competent evidence sufficient to overcome res judicata.
Accord
Belton at ¶ 64 (Rejecting academic article, The Adolescent Brain, for same
reason).
{¶ 109} Because the claims set forth in G/R Nos. 63 and 64 were raised at trial and
direct appeal and because Clinton failed to present competent evidence outside of the
record, we find the trial court did not err in finding that these grounds for relief were
barred by the doctrine of res judicata.
{¶ 110} We affirm the trial court’s dismissal of G/R No. 48 (venue) and G/R Nos.
63 and 64 (juror claims) without a hearing, and we find Clinton’s sixth assignment of
error not well-taken.
53.
C. Failure to conduct voir dire on the issue of race — G/R No. 65
{¶ 111} Clinton claims that inadequate voir dire on the subject of race deprived
him of his right to a fair trial and to effective assistance of counsel. See G/R No. 65.
Although a two-pronged claim, Clinton’s arguments focus primarily on the ineffective
assistance claim, which we addressed at ¶ 45. As for his due process claim, Clinton
argued only that a trial court is “obligat[ed] to impanel an impartial jury,” which includes
the duty to “identify unqualified jurors” and that the court “did nothing” in this case to
ensure that the jurors were “free from racial bias.” Clinton is African-American.
{¶ 112} Clinton made the same argument in his direct appeal, which the Ohio
Supreme Court denied, finding that because “Clinton did not request voir dire on the
subject of racial prejudice, … the trial court did not err by failing to inquire about the
subject of race.” Id. at ¶ 163, citing Turner v. Murray, 476 U.S. 28, 37 (1986) (Noting
that a “capital defendant accused of an interracial crime is entitled to have prospective
jurors … questioned on the issue of racial bias,” but that “a defendant cannot complain
of a judge’s failure to question the venire on racial prejudice unless the defendant has
specifically requested such an inquiry.”).
{¶ 113} Clinton insists that his claim in postconviction is not precluded because it
is supported by evidence outside the record that “explain[s] how crucial it is to voir dire
on race when a Black defendant is accused of violent crime against white victims.” The
evidence in question refers to an affidavit from Gregory Meyers, Esq. who is employed
by the Office of the Ohio Public Defender and has served as chief counsel for the death
54.
penalty division of that office. In Meyers’ opinion, defense counsel’s voir dire was
“woefully inadequate.” First, Meyer’s opinion pertains to trial counsel’s performance
only, not the trial court’s. Further, even if true, it would not yield a different result in
postconviction, for the reason that Clinton did not request voir dire on the subject of
racial prejudice. Therefore, there was no error by the trial court in failing to inquire on
the subject of race. Murray at 37. Accordingly, we find that Meyers’ affidavit is not
cogent evidence, and that the trial court did not err in dismissing G/R No. 65 without a
hearing. We find Clinton’s seventh assignment of error is without merit.
D. Failure to exclude Clinton’s “involuntary statement” as evidence at trial—
G/R No. 28
{¶ 114} In his tenth assignment of error, Clinton alleges that the trial court abused
its discretion when it failed to grant him a hearing on the issue of whether his right to a
fair trial was violated when his “involuntary statement” to police—after his attempted
suicide and release from the hospital—was admitted at trial. See G/R No. 28. The same
allegations and postconviction evidence that support this claim also support his
ineffective assistance of counsel claim, which we addressed at ¶ 67-78. Briefly though,
Clinton alleges that, during his police interview, he remained so “weak” and “confused”
from his overdose two days before, that his statement to police should have been deemed
“involuntary” and therefore inadmissible.
{¶ 115} The trial court found the ineffective assistance and due process claims
barred by res judicata because, in its words, the claims “could have been, but [were] not,
raised during the trial.” J.E. at 7-8. Earlier in this opinion, we found that, because
55.
Clinton’s ineffective assistance of counsel claim was supported by evidence outside the
record, res judicata did not apply, and we have remanded G/R No. 29 for a hearing. On
the other hand, the exception to res judicata—that applies to some postconviction claims
of ineffective assistance of counsel—does not apply to those due process claims that rely
on evidence that was known to the defense at the time of trial and could have been fully
litigated at that time. Blanton, 2022-Ohio-3985, at ¶ 94 (“Because the basis for Blanton’s
due-process claim was known to him at the time of trial and could have been fully
litigated at that time, the claim is barred by res judicata.”). In this case, because the basis
for Clinton’s due process claim was known and available to him and could have been
fully litigated, it is barred by res judicata. Therefore, we affirm the trial court’s dismissal
of G/R No. 28 without a hearing, and find Clinton’s tenth assignment of error not well-
taken.
E. Consumption of DNA and State’s failure to comply with DNA court
order—G/R No. 26
{¶ 116} In his eighth assignment of error, Clinton alleges that the trial court erred
in dismissing his claim that his due process rights, as those rights pertain to DNA
evidence, were violated when, at trial, the court failed to enforce a discovery order
regarding “DNA procedures” and when the state failed to notify defense counsel that
DNA samples would be consumed. See G/R No. 26. This ground for relief also includes
an ineffective assistance claim for counsel’s failure to challenge the state’s
noncompliance with the DNA court order, which we addressed at ¶ 43.
56.
{¶ 117} On appeal, Clinton complains that the trial court “never ruled on [his] due
process [claims],” and we agree. As we indicated previously, “[g]iven the lack of any
reference in the judgment to the DNA court order or the consumption of DNA, we find
that the trial court did not make any findings [or conclusions] with regard to G/R No. 26.”
See ¶ at 43. Therefore, we remand for findings and conclusions as to Clinton’s due
process argument raised in G/R No. 26, in addition to his ineffective assistance of trial
counsel argument. On this limited basis, we find Clinton’s eighth assignment of error
well-taken.
F. Chain of custody of DNA and other evidence—G/R No. 62
{¶ 118} In his ninth assignment of error, Clinton alleges that the trial court abused
its discretion in denying him a hearing as to his claim that his due process rights were
violated at trial when the court allowed the state to present evidence with a broken or
undocumented chain of custody, specifically (1) DNA evidence taken from “swabbings”
of the three deceased victims and of the ligatures and (2) “other evidence collected at the
scene.” (G/R No. 62). Clinton also argued, within this ground for relief, that his counsel
was ineffective for failing to ensure that the chain-of-custody of all admitted crime scene
evidence was not broken, undocumented or unproven. We have found that the court’s
findings and conclusions were limited to “crime scene” evidence only and failed to
include findings or conclusions relative to swabbings or other DNA evidence. See ¶ 44.
Given the absence of such findings or conclusions, we remand as to Clinton’s due
process argument also. That is, the trial court shall issue findings of fact and conclusion
57.
of law with respect to the chain of custody of DNA evidence in the context of Clinton’s
due process claim. On this limited basis, we find Clinton’s ninth assignment of error
well-taken.
G. Cumulative errors—G/R No. 30, 47, 53, and 67
{¶ 119} Clinton challenges the trial court’s dismissal of multiple postconviction
claims of cumulative error. Specifically, Clinton argued in his petition that,
• the cumulative effect of the state’s “investigative errors and
actions” deprived him of his right to due process (set forth in G/R No. 67
and raised on appeal in Assignment of Error No. 11); and that
• the cumulative effect of the denial of his right to effective
assistance of counsel, at trial and during mitigation, deprived him of his
right to counsel, among other constitutional rights (set forth in G/R Nos. 30
and 47 and raised on appeal in Assignments of Error Nos. 4 and 5,
respectively); and that
• the cumulative effect of all “errors and omissions” deprived him of
his right to a fair trial (set forth in G/R No. 53 and raised on appeal in
Assignment of Error No. 14).
{¶ 120} Under the cumulative error doctrine, a conviction will be reversed when
the cumulative effect of errors in a trial deprives a defendant of the constitutional right to
a fair trial even though each of the errors does not individually constitute cause for
reversal. State v. Hunter, 2011-Ohio-6524, ¶ 132; State v. Garner,
74 Ohio St.3d 49, 64
58.
(1995). However, the doctrine is inapplicable when the alleged errors are found to be
harmless or nonexistent. Id.; State v. Brown,
2003-Ohio-5059, ¶ 48.
{¶ 121} The trial court considered all claims of cumulative error together,
dismissing them without a hearing on the basis that “[w]here none of Clinton’s claims
show error, and where none of Clintons’ claims show “harmless error,” the “doctrine of
cumulative error” does not apply.” J.E. at 6.
{¶ 122} In light of our reversal of the trial court’s judgment with respect to
Clinton’s Brady claims, claims involving DNA evidence and many claims of ineffective
assistance of counsel claims, we find that the issues raised by Clinton on appeal,
pertaining to his cumulative error claims, are moot. Accord State v. Lavender, 2024-
Ohio-229, ¶ 37 (1st Dist.), citing State v. Ibrahim, 2014-Ohio-5307, ¶ 37 (10th Dist.)
(Finding issue on appeal, asserting that cumulative effect of errors at trial warranted a
hearing, was moot given the court of appeal’s reversal of trial court’s decision as to
underlying claims). The trial court shall reconsider Clinton’s claims of cumulative error,
once it resolves the underlying claims on remand.
H. Clinton’s absence from hearing involving the presentation of mitigation
evidence—G/R No. 32 and 34
{¶ 123} In his twelfth assignment of error, Clinton alleges that the trial court
abused its discretion by denying postconviction claims asserting that his right to due
process was violated when, at trial, the court allowed defense counsel “to waive”
Clinton’s right to offer evidence in mitigation (G/R No. 32), at a hearing without Clinton
in attendance (G/R No. 34).
59.
{¶ 124} Clinton raised these precise claims in his direct appeal, which the Ohio
Supreme Court rejected. In its words, Clinton “argue[d] that he had to personally waive
his presence at [the hearing where the waiver of mitigating evidence was addressed], but
he is incorrect. … [D]uring earlier proceedings, Clinton and defense counsel informed
the court that he did not want to attend all the hearings and conferences. Thus, Clinton’s
absence was consistent with his stated wishes.” (Emphasis added.) Clinton, 2017-Ohio-
9423, at ¶ 210 citing State v. Gagnon, 470 U.S. 522, 528 (1985) (Trial court “need not get
an express ‘on the record’ waiver from the defendant for every trial conference which a
defendant may have a right to attend.”). Significantly, the court also found that Clinton
did not waive his right to present mitigation evidence because he “did in fact present
mitigating evidence [consisting of] his … lengthy unsworn statement.”
Id. at ¶ 195-
196. It explained that, rather than waive the presentation of mitigating evidence, Clinton
merely limited the scope of the evidence by “instruct[ing] his counsel not to present any
mitigating evidence on his behalf.” (Emphasis added.) Id. at ¶ 195. The court also
specifically rejected Clinton’s claim that the unsworn statement “contained nothing that
was mitigating.” It described the mitigating evidence, set forth in Clinton’s statement, as
follows: “[Clinton] explained his behavior on the night of the murders, his prior
relationship with Jackson and her children, the depression he experienced, and the jobs he
had held and lost.” Id. at ¶ 196. Finally, the court found that the presentation of
Clinton’s statement obviated the need to conduct an inquiry under State v. Ashworth,
85
Ohio St.3d 56 (1999), paragraph one of the syllabus (“In a capital case, when a defendant
60.
wishes to waive the presentation of all mitigating evidence, a trial court must conduct an
inquiry of the defendant on the record to determine whether the waiver is knowing and
voluntary.”). Clinton at ¶ 193. The court specifically found that the trial court did not err
in not conducting an Ashworth inquiry, in light of the presentation of his statement.
{¶ 125} In support of his postconviction claims, which are verbatim as those
raised in his direct appeal, Clinton relies upon his own affidavit and the affidavit from his
defense investigator who interviewed one of the jurors. The trial court found that the
evidence was insufficient to overcome the res judicata bar. J.E. at 8.
{¶ 126} On appeal, Clinton challenges the applicability of res judicata and points
to his affidavit testimony, in which he asserts that the reason he “did not want to present
mitigation [was] because [he] didn’t understand the process” or “how appeals work.”
Clinton argues that such evidence casts “serious doubts on whether he understood the
ramifications on his mitigation waiver.”
{¶ 127} The evidence in the record does not support the contentions set forth in
Clinton’s affidavit. First, Clinton was evaluated by his own defense neuropsychologist,
Dr. Galit Askenazi, who conducted a competency evaluation. Based on her findings, Dr.
Askenazi opined “with reasonable psychological certainty, that Mr. Clinton is able to
understand[] the nature and objectives of the mitigation phase and to knowingly choose
to waive mitigation at the present time.” The record also includes defense counsel’s
assessment that Clinton’s “knowledge of the penalty phase is probably better than a lot of
lawyers in the state at this time.” In fact, trial counsel told the court that Clinton’s motive
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for prohibiting the presentation of any other mitigation evidence was because Clinton
“hop[ed] to get the death penalty” because he “believes he will be much safer on death
row than [in with the] general population.” Clinton at ¶ 41. In postconviction, Clinton
reaffirmed that he was “afraid to be in the general population [of prison].”
{¶ 128} “Evidence outside the record alone will not guarantee the right to an
evidentiary hearing.” State v. Curtis, 2018-Ohio-2822, ¶ 24 (5th Dist). A defendant
advancing a post-conviction petition is required to present evidence which meets a
minimum level of cogency to support his or her claims.
Id. “A petitioner’s self-serving
affidavit generally does not meet his or her minimum level of cogency.”
Id., citing State
v. Kapper,
5 Ohio St.3d 36 (1983); State v. Moncrief,
2008-Ohio-4594 (10th Dist.).
{¶ 129} Clinton also relies on an affidavit from his postconviction investigator
who interviewed Juror No. 210 and averred that the jury “could not really consider”
Clinton’s unsworn statement because “it was not mitigation.” We reject the argument.
As discussed above, the Ohio Supreme Court specifically found that Clinton’s statement
constituted mitigating evidence.
{¶ 130} The affidavits, documentary evidence, files, and the records do not
demonstrate that Clinton set forth sufficient operative facts to establish substantive
grounds for relief. Accordingly, the trial court properly denied Clinton’s petition for post-
conviction relief without holding an evidentiary hearing, and we find that the trial court
did not abuse its discretion in dismissing G/R Nos. 32 and 34 without a hearing.
Clinton’s twelfth assignment of error is found not well-taken.
62.
I. Clinton’s claim of actual innocence—G/R No. 31
{¶ 131} In his third assignment of error, Clinton argues that the trial court abused
its discretion in denying his claim in postconviction that he is actually innocent of the
offenses for which he was convicted and sentenced to death. See G/R No. 31.
{¶ 132} Clinton does not assert a claim of actual innocence based upon DNA
evidence, under R.C. 2953.23(A)(1)(a)(iii). Rather, Clinton’s claim is based upon his
alternative suspects theories, i.e. that either Jackson’s drug-dealing friends or her ex-
boyfriend, Griggs, had both the motivation and the opportunity, i.e. by gaining access to
Jackson’s home through an open window “outside of the view of the [hospital]
surveillance video.” Clinton adds that “any number of [other] potential suspects … could
have had a role in her murders.” Appellant’s brief at 110, citing G/R Nos. 1-27 “and
attached exhibits.”
{¶ 133} “[A] claim of ‘actual innocence’ is not itself a constitutional claim, but
instead a gateway through which a habeas petitioner must pass to have his otherwise
barred constitutional claim considered on the merits.” Herrera v. Collins, 506 U.S. 390,
404 (1993), accord State v. Apanovitch,
2018-Ohio-4744, ¶ 26. Herrera has been
interpreted to mean that “a petitioner [is] not entitled to post-conviction relief unless he
[can] show[] a violation of rights that were constitutional in dimension, which occurred
at the time that the petitioner was tried and convicted.” (Emphasis added.) State v.
Willis,
2016-Ohio-335, ¶ 15-17 (6th Dist.), citing State v. Campbell,
1997 WL 5182 (1st
Dist. Jan. 8, 1997). In Campbell, the First Appellate District held that
63.
[N]ewly discovered evidence is, by definition, that “which the
defendant could not with reasonable diligence have discovered and
produced at trial.” Crim.R. 33(A)(6); … A claim of actual innocence
based on newly discovered evidence will, therefore, not provide substantive
grounds for post-conviction relief, because “it does not, standing alone,
demonstrate a constitutional violation in the proceedings that actually
resulted in the conviction.” … [Petitioner’s] claims of actual innocence
were thus not cognizable in a postconviction proceeding. Id., citing State v.
Powell, 90 Ohio App.3d 260, 264, (1993).
{¶ 134} Here, Clinton’s actual innocence claim is not predicated upon a
constitutional violation occurring at the time that he was tried and convicted. Rather, he
argues that, “[g]iven the evidence that has developed [in post-conviction],” a new trial
may show that he is actually innocent. Clinton argues that, under these circumstances,
“his convictions and death sentence would violate the Eight Amendment[’s]” prohibition
against cruel and unusual punishment. (Emphasis added.)
{¶ 135} Other Ohio courts have rejected claims of actual innocence under similar
circumstances. State v. Watson, 126 Ohio App.3d 316, 323 (12th Dist.1998), (Rejecting
“claimed constitutional violation that appellant was in prison for a crime he did not
commit … violat[ive] [of] the Cruel and Unusual Punishment Clause of the Eighth
Amendment and the Due Process Clause of the Fourteenth Amendment to the United
States Constitution.”); State v. Loza,
1997 WL 634348 (12th Dist. Oct. 13, 1997)
64.
(“[A]ctual innocence does not, standing alone, demonstrate a constitutional violation in
the proceedings that actually resulted in the conviction.”); State v. Ayers, 2022-Ohio-
1910, ¶ 93-97 (5th Dist.); State v. Williams,
2022-Ohio-2043, ¶ 59 (8th Dist.) (“The
statute refers only to DNA testing results, not general arguments of actual innocence.
Further, a claim of actual innocence is not itself a constitutional claim, nor does it
constitute a substantive ground for postconviction relief.”).
{¶ 136} Because Clinton’s actual innocence claim is based on newly discovered
evidence, it is not a cognizable claim in a postconviction proceeding. Therefore, the trial
court did not err in denying G/R No. 31, and Clinton’s third assignment of error is found
not well-taken.
J. Compliance with R.C. 2929.11—G/R No. 51
{¶ 137} In his thirteenth assignment of error, Clinton argues that the trial court
abused its discretion when it denied him relief on the ground that his due process rights
were violated during sentencing when the court failed to follow Ohio sentencing law.
See G/R No. 51. According to Clinton, the trial court “failed to weigh or even mention”
the factors set forth in R.C. 2929.11(A), which provides that,
A court that sentences an offender for a felony shall be guided by
the overriding purposes of felony sentencing. The overriding purposes of
felony sentencing are to protect the public from future crime by the
offender and others, to punish the offender, and to promote the effective
rehabilitation of the offender using the minimum sanctions that the court
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determines accomplish those purposes without imposing an unnecessary
burden on state or local government resources.
{¶ 138} Clinton raised these same arguments in his direct appeal. In rejecting the
claim, the Ohio Supreme Court said,
Clinton claims that the trial court did not comply with R.C. 2929.11.
The record belies this claim. Before pronouncing sentence, the trial court
stated, “The Court will state for the record that it is cognizant of the
overriding purposes and principles of felony sentencing here in Ohio. The
Court does adhere to those purpose[s] and principles, as it must, pursuant to
2929.11(A), (B), and (C) of the Ohio Revised Code.” Clinton, 2017-Ohio-
9423, at ¶ 242.
{¶ 139} The Ohio Supreme Court also rejected Clinton’s argument that the trial
court “never made detailed findings” under R.C. 2929.11, noting that “a trial court
‘fulfills its duty under the statutes by indicating that it has considered the relevant
sentencing factors’” and that the court “‘need not go through each factor on the record—
it is sufficient that the court acknowledges that it has complied with its statutory duty to
consider the factors without further elaboration.’” Id. at ¶ 243, quoting State v. Smith,
2014-Ohio-1520, ¶ 14 (8th Dist.).
{¶ 140} In postconviction, Clinton repeats his failing argument that the trial court
“failed to follow” R.C. 2929.11(A) because neither the transcript nor the opinion
“contemplate the purposes of felony sentencing.” G/R No. 51. He insists that the death
66.
penalty places an unnecessary burden on state and local resources and that a sentence of
“less than” death would have achieved the purposes of felony sentencing, i.e. it would
have incapacitated him, deterred others and allowed rehabilitation to occur. In support,
Clinton included with his petition a number of reports, i.e. Capital Crimes Annual Report
(2014) by the Ohio Attorney General; Final Report to the General Assembly (2008) by
the Maryland Commission on Capital Punishment; and Smart on Crime: Reconsidering
the Death Penalty in a Time of Economic Crisis (2009), by the Death Penalty Information
Center. Clinton argues that the reports demonstrate that the death penalty is not the
“minimum sanction” that would accomplish the purposes of R.C. 2929.11 due to the
“significant … financial burden of the death penalty on government.” See Exs. 63A,
63B, and 63C.
{¶ 141} In its review, the trial court found Clinton’s claim barred by res judicata
because it was “expressly raised on direct appeal” and because none of the evidence
included with the petition “would have had any material effect on the propriety of the
adjudication of the claim by the Ohio Supreme Court.” J.E. at 8-9.
{¶ 142} Two of the articles were available to Clinton during his 2013 trial and
therefore are res judicata. Bowman, 2023-Ohio-2078, at ¶ 15 (2d Dist.). Furthermore,
none of the evidence alters the fact, as determined by the Ohio Supreme Court, that the
trial court complied with R.C. 2929.11(A). Moreover, the court has expressly found that
“[i]n some cases, a sentencing court may determine that the death penalty is, in fact, ‘the
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minimum sanction;’ that will accomplish its purpose of ‘punishing the offender.’”
(Emphasis added.) State v. Belton,
2016-Ohio-1581, ¶ 45-46 citing R.C. 2929.11(A).
{¶ 143} We find that G/R No. 51 is barred by res judicata because the evidence
dehors the record was either available at the time of trial or because it fails to demonstrate
that the trial court did not properly consider whether the burden imposed by the sentence
was unnecessary in the context of this case. Therefore, Clinton’s complaint—that neither
the transcript nor the judgment entry contemplates the purposes of felony sentencing—
fails on its merits and is barred by res judicata. Clinton’s arguments are also precluded
by State v. Jones, 2020-Ohio-6729, ¶ 42. (“Nothing in R.C. 2953.08(G)(2) permits an
appellate court to independently weigh the evidence in the record and substitute its
judgment for that of the trial court concerning the sentence that best reflects compliance
with R.C. 2929.11 and 2929.12. In particular, R.C. 2953.08(G)(2) does not permit an
appellate court to conduct a freestanding inquiry like the independent sentence evaluation
the Supreme Court must conduct under R.C. 2929.05(A) when reviewing a death-penalty
sentence.”). For all of these reasons, we find Clinton’s thirteenth assignment of error is
found not well-taken.
K. Constitutionality of R.C. 2953.21(A)—G/R No. 50
{¶ 144} In his fifteenth assignment of error, Clinton alleges that the trial court
abused its discretion in failing to find Ohio’s postconviction review statute, R.C.
2953.21(A), unconstitutional. Clinton alleges in his brief that he “supported this ground
of relief with evidence outside the trial record” but fails to identify what the alleged
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“evidence” is. Appellant’s brief at 124. By contrast, Clinton’s petition did not allege
that his claim relied upon, or was supported by, any evidence dehors the record. See G/R
No. 50.
{¶ 145} We have previously rejected a constitutional challenge to R.C. 2953.21.
State v. Zich, 2017-Ohio-414, ¶ 29 (6th Dist.) (“In light of the considerable case law
upholding the constitutionality of Ohio’s postconviction procedure set forth in R.C.
2953.21, we find appellant’s constitutional argument unavailing.”) Further, even if
Clinton had raised a cognizable claim of a constitutional error, it would be barred res
judicata. “Under the doctrine of res judicata, constitutional issues cannot be considered
in postconviction proceedings under R.C. 2953.21 et seq. where they have already been
or could have already been litigated by the convicted defendant, while represented by
counsel, either before conviction or on direct appeal.” State v. Lott,
2002-Ohio-6625, ¶
19 overruled on other grounds in State v. Ford,
2019-Ohio-4539. “Res judicata applies if
the petition for post-conviction relief does not include any material dehors the record in
support of the claim for relief.” (Internal quotations and citations omitted.) State v. Kiley,
2013-Ohio-634, ¶ 7, citing State v. Fry,
2012-Ohio-2602, ¶ 4 (9th Dist.). Clinton’s
constitutional challenge could have been raised before the trial court and on direct appeal.
For that reason, and because Clinton includes no evidence outside the record, his claim is
barred by res judicata.
69.
{¶ 146} We find that the trial court did not abuse its discretion in dismissing
Clinton’s fiftieth ground for relief and that Clinton’s fifteenth assignment of error is not
well-taken.
VIII. CLINTON’S DISCOVERY MOTIONS
{¶ 147} In Clinton’s sixteenth—and final—assignment of error, he claims that he
was entitled to conduct post-conviction discovery, pursuant to R.C. 2953.21(A)(1)(e) and
Crim.R. 42(C), and that the trial court abused its discretion in denying his requests. We
agree, in part.
A. Discovery under R.C. 2953.21.
{¶ 148} On April 6, 2015, during post-conviction, Clinton moved the trial court
for discovery from multiple agencies and individuals who were connected to the trial,
mostly in the form of subpoenas duces tecum and depositions. The trial court denied the
motion. Clinton promptly requested that the court “reconsider” its decision, in light of
“new evidence,” specifically a news article, appearing in the Washington Post on May
29, 2015. The article reported that the FBI had notified “crime labs across the country”
that it had discovered errors in data used by forensic scientists to match DNA to a
particular person. On June 26, 2015, the trial court denied Clinton’s motion for
reconsideration.
{¶ 149} At the time Clinton’s motions were decided in 2015, “it was well
established that the statutory scheme governing postconviction relief did not entitle a
petitioner to conduct discovery.” State v. Myers, 2021-Ohio-631, ¶ 35 (12th Dist.),
70.
citing State ex rel. Love v. Cuyahoga Cty. Prosecutor’s Office,
87 Ohio St.3d 158, 159
(1999) (“[T]here is no requirement of civil discovery in postconviction proceedings.”);
see also State v. Taylor,
2002-Ohio-2742, ¶ 19 (8th Dist.) (Courts are not required to
provide petitioners discovery in postconviction proceedings.). Nevertheless, discovery
“could be proper” where a petitioner set forth operative facts outside the record that
revealed a constitutional error in his case.
Id. The granting or overruling of a discovery
motion rested within the sound discretion of the trial court.
Id., citing State v. Lawson,
2012-Ohio-548, ¶ 17 (12th Dist.).
{¶ 150} As previously discussed, R.C. 2953.21 was amended on April 16, 2017,
and the amendments made “substantial changes regarding PCR petitions in death-penalty
cases, and in particular, allow[ed] capital petitioners to obtain discovery in aid of their
PCR petition if good cause is shown.” Myers at ¶ 35 citing R.C. 2953.21(A)(1)(e). That
provision provides, in relevant part,
At any time in conjunction with the filing of a petition for
postconviction relief under division (A) of this section by a person who has
been sentenced to death, or with the litigation of a petition so filed, the
court, for good cause shown, may authorize the petitioner in seeking the
postconviction relief and the prosecuting attorney of the county served by
the court in defending the proceeding, to take depositions and to issue
subpoenas and subpoenas duces tecum in accordance with divisions
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(A)(1)(e), (A)(1)(f), and (C) of this section, and to any other form of
discovery as in a civil action that the court in its discretion permits.
{¶ 151} On appeal, Clinton argues that, under R.C. 2953.21(A)(1)(e), he
“provided good cause for the discovery he requested in 2015 motions.” [sic]. But the
motions were filed, and decided, nearly two years before the amendment—authorizing
discovery for “good cause”—was enacted. And, Clinton did not refile the motions, or
request that the trial court reconsider its earlier orders, in light of the amendment.
Clinton could have done so, inasmuch as the statute allows capital petitioners to obtain
discovery, for good cause shown, “at any time in conjunction with the filing of a [PCR
petition], or with the litigation of a petition so filed[.]” (Emphasis added.) R.C.
2953.21(A)(1)(e); see, e.g. Myers at ¶ 39 (finding that because the appellant’s post-
conviction petition was “still being litigated on April 6, 2017, when the amended statute
became effective,” it applied to his petition and specifically to his unresolved
supplemental motion for discovery). Here, Clinton can hardly show that the trial court
abused its discretion under R.C. 2953.21(A)(1)(e) when he never requested discovery
under that provision.
{¶ 152} Even if we were to apply the amended provision to this case, we find no
basis to conclude that good cause was shown. Good cause exists “where specific
allegations before the court show reason to believe that the petitioner may, if the facts are
fully developed, be able to demonstrate that he is … entitled to relief.” Id. at ¶ 42,
quoting Bracy v. Gramley, 520 U.S. 899, 908-909 (1997). Before determining whether a
72.
petitioner is entitled to discovery under the “good cause” standard, the court must first
identify the essential elements of the claim on which discovery is sought. Id. at ¶ 43,
citing
Bracy at 904. The burden of demonstrating the materiality of the information
requested is on the moving party.
Id. Discovery may be allowed where the petitioner’s
claims are “neither patently frivolous nor palpably incredible” and where “the discovery
he requests is specific, limited, and reasonably calculated to lead to evidence in support
of his claim[.]” (Citation omitted.)
Id. If the moving party meets its burden and
establishes good cause, then “it is the duty of the [trial court] to provide the necessary
facilities and procedures for an adequate inquiry.”
{¶ 153} Clinton promulgated 26 discovery requests, designated as Requests “a”
through “bb” in which he sought records and depositions of individuals, most of whom
are unidentified by name, but rather by their title within a particular governmental
agency, i.e. the Sandusky County Department of Children’s Services. Thus, in eight
requests, Clinton requested “records, deposition, or subpoena duces tecum of the entire
[governmental agency’s] file maintained and relating to the deaths of Heather Jackson,
C.J., W.J. and the rape of E.S.” The next eight requests sought to depose the “officers,
investigators, and agents” of those agencies. Clinton also requested to depose “all seated
jurors and alternate jurors,” as well as his trial counsel, criminal investigator, and expert
witness. In his final four requests, Clinton sought a “complete chain-of-custody and
inventory of” of “all evidence collected from the investigation of the crime scene, …
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all DNA swabs, … evidence collected from Curtis Clinton’s vehicle, … [and his]
clothing and personal items.”
{¶ 154} Missing from Clinton’s requests is any showing of materiality. That is,
Clinton failed to articulate how any of the requests relate to any particular postconviction
claim. Instead, he argued, generally, that discovery was necessary “to uncover …
relevant and material evidence that supports [his] grounds for relief.” And, rather than
identify operative facts outside of the record, he argued that discovery should be allowed
so that he could “develop [facts] not within his control.” (Emphasis added.) Under the
prior or current standard, post-conviction discovery is not allowed for this purpose. We
find that the discovery sought by Clinton in 2015 is overly broad and neither specific, nor
limited, nor reasonably calculated to lead to evidence in support of his claims.
Accordingly, we find that Clinton failed to establish that good cause exists for the
information he seeks.
{¶ 155} Likewise, Clinton’s inclusion of a news article from The Washington Post
did not raise a colorable claim that the DNA analysis conducted in his case was “fraught
with error.” According to the article, “software programs” used by most, but not all, U.S.
crime labs produced “errors in data” that scientists were reportedly using at the time to
calculate the chances that DNA found at a crime scene “matched” a particular person.
Importantly, there was no indication that BCI, the agency that analyzed DNA in this case,
was one of the labs notified by the FBI. Moreover, the article specified that the purported
“errors in data” were “unlikely to result in dramatic changes that would affect cases.”
74.
(Emphasis added.) Therefore, we find that the article did not substantiate the need for
discovery, as it relates to the DNA evidence analyzed in his case.
{¶ 156} A petitioner is not entitled to go on a fishing expedition based on
conclusory allegations. “Even in a death penalty case, ‘bald assertions and conclusory
allegations do not provide sufficient grounds to warrant requiring the state to respond to
discovery or to require an evidentiary hearing.’” Stanford v. Parker, 266 F.3d 442, 460
(6th Cir.2001), quoting Zettlemoyer v. Fulcomer,
923 F.2d 284, 301 (3d Cir.1991).
Given Clinton’s failure to identify specific operative facts that, if proved, would establish
constitutional error, we cannot say that the trial court abused its discretion in denying his
2015 motion for discovery.
B. Discovery under Crim.R. 42(C).
{¶ 157} Clinton also pursued discovery from the prosecution in May of 2018,
when he requested access to all evidence allowed under Crim.R. 42(C). Generally, that
rule authorizes “full and complete access to all documents, statements, writings,
photographs, recordings, evidence, reports, or any other file material.” Through
correspondence with the prosecutor, Clinton’s postconviction counsel requested to
“examine” the state’s file, in the location where it was housed. The state responded that
“the Crim.R. 42 materials”—which it defined as materials from October 9, 2012 through
December 13, 2013—had already been provided. By motion, Clinton then requested that
the trial court enforce Crim.R. 42(C) and indicated that “every effort [had been made] to
get the requested discovery without involving this court.” The state objected, and the
75.
trial court denied Clinton’s Crim.R. 42 motion, finding that “no further discovery needs
to take place.”
{¶ 158} Crim.R. 42 (“Capital cases and post-conviction review of capital cases”)
was adopted by the Ohio Supreme Court on July 1, 2017. The rule provides, in relevant
part:
(A) Definitions. As used in this rule:
(1) “Capital cases” means all cases in which an indictment or count
in an indictment charges the defendant with aggravated murder and
contains one or more specifications of aggravating circumstances listed in
R.C. 2929.03(A).
(2) “Post-conviction review of a capital case” means any post-
conviction proceedings reviewing the conviction or sentence in any case in
which the death penalty has been imposed, other than direct appeal to the
Supreme Court of Ohio.
(B) General.
(1) This rule shall apply to all capital cases and post-conviction
review of a capital case.
(2) The clerk shall accept for filing, and the court shall rule on, any
properly presented motion.
(3) In all proceedings involving a post-conviction review of a capital
case, both of the following shall apply:
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(a) The court shall state specifically why each claim was either
denied or granted;
(b) There shall be no page limitations or word count limitations for
the petition filed with the common pleas court.
(C) Access File Material. In a capital case and post-conviction
review of a capital case, the prosecuting attorney and the defense attorney
shall, upon request, be given full and complete access to all documents,
statements, writings, photographs, recordings, evidence, reports, or any
other file material in possession of the state related to the case, provided
materials not subject to disclosure pursuant to Crim.R 16(J) shall not be
subject to disclosure under this rule.3
{¶ 159} We review a trial court’s order denying a Crim.R. 42 request for
discovery for an abuse of discretion. Powell, at ¶ 48 (Reviewing a request for the
appointment of an expert under Crim.R. 42(E)).
{¶ 160} The state denied Clinton’s Crim.R. 42(C) request on the basis that it had
already “provided” all discovery materials to which he was entitled, under Crim.R. 16,
during the trial, i.e. from October, 2012 to December, 2013. The fact that the state may
33
Clinton’s postconviction proceeding was already pending at the time Crim.R. 42 took
effect on July 1, 2017. We note that the state does not dispute the applicability of the
then-newly amended rule to Clinton’s motion, which he filed on May 18, 2018. See
Crim.R. 59(ee) regarding the “Effective date” of Crim.R. 42; see also State v. Powell,
2019-Ohio-4286, ¶ 19, fn.1 (6th Dist.).
77.
have fully complied with its discovery obligation during the trial phase, under Crim.R.
16, is not germane to the issue of its compliance during postconviction review under
Crim.R. 42. Indeed, Crim.R. 42(C) provides “access” to discovery materials, and the rule
applies “to all … postconviction reviews of capital murder cases.” State ex rel Swopes
v. McCormick,
2022-Ohio-306, ¶ 12 (8th Dist.). We further reject the state’s current
argument, that it had no duty to respond to Clinton’s “supposed discovery request under
Crim.R. 42” because “there was no new material to disclose.” (Emphasis added.) See
Appellee’s Brief at 32. The state cites no authority in support of its position, and we are
aware no such authority either. Moreover, while there is little case law interpreting
Crim.R. 42 and specifically Crim.R. 42(C), we agree with the observations made by the
Eleventh District in State v. Noling,
2022-Ohio-759, ¶ 22 (11th Dist.). Although the
petitioner’s Crim.R. 42(C)’s requests in that case were “not directly at issue in [the]
appeal,” the court of appeals remarked that the trial court had “without clear justification
or rationale denied appellant’s previous Crim.R. 42(C) motion for access,”
notwithstanding that it “appears Crim.R. 42(C) mandates the relief appellant sought in his
initial motions.”
Id. And, it expressed skepticism for the trial court’s “under-analyzed”
decision to deny petitioner’s motions.
Id.
{¶ 161} The same may be said in here. That is, the trial court offered no
explanation for its refusal to enforce Clinton’s request under Crim.R. 42(C), other than to
state that “no further discovery needs to take place.” Unlike a request for discovery
under R.C. 2953.21(A)(1)(e), Clinton did not need to establish “good cause” in order to
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“access” file materials. We find that the trial court abused its discretion in denying
Clinton’s request under Crim.R. 42(C). On that limited basis, we find his sixteenth
assignment of error well-taken.
{¶ 162} Crim.R. 42 allows the “prosecuting attorney and the defense attorney” to
access file materials “in possession of the state related to the case.” (Emphasis added.)
We note that Clinton’s request for access was limited to the Erie County Prosecutor.
Therefore, on remand, the prosecutor shall provide access to the materials described in
the rule, subject to materials that would otherwise not be subject to disclosure under
Crim.R. 16(J). In sum, we find Clinton’s sixteenth assignment of error well-taken, in part
and as set forth above.
IX. CONCLUSION
{¶ 163} The October 26, 2021 judgment of the Erie County Court of Common
Pleas is reversed in part and affirmed in part. We find Clinton’s third, sixth, seventh,
tenth, twelfth, thirteenth, and fifteenth assignments of error not well-taken, and we affirm
the trial court’s judgment that dismissed the grounds for relief, without a hearing, that are
the subjects of those assignments of error.
{¶ 164} We find the remaining assignments of error well-taken in part and as set
forth herein, specifically the first, second, fourth, fifth, eighth, ninth, eleventh, fourteenth,
and sixteenth assignments of error, and we remand them, consistent with this opinion, for
purposes of discovery pursuant to Crim.R. 42(C), for issuance of findings of fact and
conclusions of law, and/or for a hearing.
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{¶ 165} The parties are ordered to share in the cost of this appeal, pursuant to
App.R. 24. It is so ordered.
Judgment affirmed, in part,
reversed, in part, and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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