Petition for Writ of Certiorari — Hersie Wesson, Petitioner v. Ohio

No. _______

IN THE SUPREME COURT OF THE UNITED STATES

_________

HERSIE WESSON, JR.,

Petitioner,

v.

STATE OF OHIO,

Respondent.

______________________________________________________________________________

On Petition for a Writ of Certiorari to the

Ninth District Court of Appeals of Ohio

______________________________________________________________________________

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

______________________________________________________________________________

OFFICE OF THE OHIO PUBLIC DEFENDER

Rachel Troutman (0076741)

Supervising Attorney

Death Penalty Department

Rachel.Troutman@opd.ohio.gov

Counsel of Record

Melissa Jackson (0077833)

Assistant State Public Defender

Death Penalty Department

Melissa.Jackson@opd.ohio.gov

250 East Broad Street, Suite 1400

Columbus, Ohio 43215

(614) 466-5394 (Telephone)

(614) 644-0708 (Fax)

Counsel for Petitioner, Hersie Wesson, Jr.

Elite

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JUL -5

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2018

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suruma coum or BHIO

State of Ohio

Case No. 2018-0566

ENTRY

V.

Hersie Wesson

Upon consideration of the jurisdictional memoranda filed in this case, the court

declines to acceptjurisdiction ofthe appeal pursuant to S.Ct.Prac.R. 7.08(B)(4).

(Summit County Court ofAppeaIs; No. 28412)

444%

TERRENCE O’DONNELL

Acting Chiefjustice

The Official Case Announcement can be found at http://www.supremecour1.ohio.gov/ROD/docs/

Appendix A

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Appendix B

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SANOR,£1 ~,,'! JR'~ THESUMMIT

COURT OF COMMON PLEAS

COUNTY, OHIO

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W!6 OCT -4 AM IQ: g I

STATE ~a~~Mf

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9:;oui\ryy

CASE NO. CR 2008-03-0710

)

fWEHAff)F t~OLJRTS

)

vs.

)

)

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HERSIE R. WESSON,

)

Defendant.

)

)

WDGE THOMAS A. TEODOSIO

ORDER

*****

This matter came before the Court upon Petitioner Hersie Wesson's Post-Conviction

Petition, filed on December 11, 2015, and First Amendment to Post-Conviction Petition, filed on

February 29, 2016. The State of Ohio filed a Motion to Dismiss on April 11, 2016, and the

Petitioner filed a Memorandum in Opposition to State's Motion to Dismiss on May 25, 2016.

The Ninth District Court of Appeals concisely stated the underlying facts of this case as

follows:

Wesson was indicted in 2008 on 13 counts related to his murder of Emil Varhola,

his attempted murder of Mary Varhola, and his robbery of their home. He waived

his right to a jury trial and was tried by a three-judge panel. The panel granted

Wesson's Crim.R. 29 motion as to one count of aggravated murder and also

dismissed three counts of attempted aggravated murder. The panel found him

guilty of two counts of aggravated murder and the capital specifications,

attempted murder, aggravated robbery, having a weapon under disability, and

tampering with evidence.

At the conclusion of the mitigation phase of trial, the panel sentenced Wesson to

death for the crime of aggravated murder. It further sentenced Wesson to various

prison sentences for the remaining offenses.

State v. Wesson, 9th Dist. No. 25874, 2012-0hio-4495, at 'i[2-3.

Petitioner filed his initial petition for post-conviction relief on February 17, 2010, and an

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amendment to that petition on February 22, 2010; both were denied on March 2, 2011. The

Ninth District Court of Appeals affirmed the decision. Id. The Supreme Court of Ohio declined

Appendix C

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to accept jurisdiction of the appeal of the Ninth District's decision. State v. Wesson, No. 20121901 (Sep. 24, 2014).

In a direct appeal of the judgment, the Supreme Court of Ohio:

[R]everse[d] Wesson's conviction for aggravated murder in Count Three, the

specifications related to that count, and the specification to Count Two alleging

that he committed the murder while under detention[, but] affirm[ed] the

remaining convictions, the imposition of capital punishment on Count Two, and

the imposition of consecutive terms of imprisonment on the noncapital offense

convictions.

State v. Wesson, 137 Ohio St.3d 309, 336, 2013-0hio-4575, 999 N.E.2d 557 (French, J.,

concurring in part and dissenting in part) (Lanzinger, J., dissenting). The Supreme Court denied

Petitioner's Motion for Reconsideration and Application for Reopening. State v. Wesson, No.

2009-0739, Dec. 23, 2013, and Oct. 8, 2014.

In Petitioner's capital habeas case, the United States District Court for the Northern

District of Ohio granted a Motion to Stay Habeas Case and Hold it in Abeyance for Exhaustion

ofNew Claims in State Court. Wesson v. Jenkins, N.D.Ohio No. 5:14 CV 2688, 2015 U.S. Dist.

LEXIS 157218 (Nov. 20, 2015). The court found that "none of the claims are plainly meritless,

particularly in light of a potentially meritorious Atkins claim." Id at 3; see also Atkins v.

Virginia (2002), 536 U.'S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335.

Petitioner claims that he has never had an Atkins hearing and that his prior attorneys

failed to properly litigate his intellectual disability and related claims. Petition, at 2. In Atkins,

the U.S. Supreme Court held that the punishment of death "is excessive and that the Constitution

'places a substantive restriction on the State's power to take the life' of a mentally retarded

offender." Atkins, at 321; quoting Ford v. Wainright (1986), 477 U.S. 399, 405, 106 S.Ct. 2595,

91 L.Ed.2d 335.

Petitioner requests a new trial, a new penalty phase hearing, or that this Court vacate his

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death sentence and impose a life sentence. Petition, at 71. In the alternative, he requests an

Atkins hearing to prove his intellectual disability. Id. at 72.

The Ohio Revised Code addresses petitions for post-conviction relief in R.C. 2953.21, et

seq. Pursuant to R.C. 2953.21, "Any person who has been convicted of a criminal offense* * *

and who claims that there was such a denial or infringement of the person's rights as to render

the judgment void or voidable under the Ohio Constitution or the Constitution of the United

States" may petition the Court for post-conviction relief. The Court shall determine whether

there are substantive grounds for relief and whether a hearing is necessary. R.C. 2953.2l(C).

Former R.C. 2953.2l(A)(2) provided, in part:

Except as otherwise provided in section 2953.23 of the Revised Code, a petition

under division (A)(l) ofthis section shall be filed no later than one hundred

eighty days 1 after the date on which the trial transcript is filed in the court of

appeals in the direct appeal of the judgment of conviction or adjudication or, if the

direct appeal involves a sentence of death, the date on which the trial transcript is

filed in the supreme court.

Here, the trial transcript was filed in the Supreme Court of Ohio on August 21, 2009. State v.

Wesson, No. 2009-0739, Aug. 21, 2009. Petitioner filed his initial petition for post-conviction

relief on February 17, 2010, and an amendment to the petition on February 22, 2010, which were

both denied on March 2, 2011, and later affirmed on appeal. Wesson, 2012-0hio-4495, at ~114.

The Court may not entertain untimely, second, or successive petitions for post-conviction

relief unless the Petitioner satisfies the requirements under R.C. 2953.23. See State v. Smith, 9th

Dist. 04CA0088546, 2005-0hio-2571, at ~13. R.C. 2953.23(A)(l) requires both of the following

criteria to be met:

(a) Either the petitioner shows that the petitioner was unavoidably

prevented from discovery of the facts upon which the petitioner must rely

to present the claim for relief, or, subsequent to the period prescribed in

1

The current version ofR.C. 2953.2l(A)(2), effective March 23, 2015, now provides for thl:ee hundred,sixty-five

days.

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division (A)(2) of section 2953.21 of the Revised Code or to the filing of

an earlier petition, the United States Supreme Court recognized a new

federal or state right that applies retroactively to persons in the petitioner's

situation, and the petition asserts a claim based on that right.

(b) The petitioner shows by clear and convincing evidence that, but for

constitutional error at trial, no reasonable factfinder would have found the

petitioner guilty of the offense of which the petitioner was convicted or, if

the claim challenges a sentence of death that, but for constitutional error at

the sentencing hearing, no reasonable factfinder would have found the

petitioner eligible for the death sentence.

"For purposes ofR.C. 2953.23(A)(l), Ohio courts have defined 'unavoidably prevented' as

meaning 'a defendant was unaware of those facts and was unable to learn of them through

reasonable diligence."' State v. Creech, 4th Dist. No. 12CA3500, 2013-0hio-3791, at ifl8, citing

State v. Pianowski, 2"d Dist. No. 25369, 2013-0hio-2764, at if! 7; State v. Brown, 5th Dist. No.

2007-CA-00220, 2008 Ohio 39, at if21.

Petitioner states that his alleged intellectual disability "began before birth." Petition, at I,

11, 27, 29. He specifically relies on two recent evaluations in 2015 from Dr. Daniel Grant

(Exhibit 1) and Dr. Stephen Greenspan (Exhibit 2) to support his intellectual disability claim. He

has further submitted an affidavit from Dr. Jeffrey Smalldon (Exhibit 3), the mitigation phase

expert witness in this case, who now avers that he should not have testified that he "didn't

'

believe [Petitioner] would have qualified for an automatic exemption from the death penalty due

to mental retardation." Exhibit 3, at if5. Petitioner also submitted numerous additional exhibits

to support his claims.

The Court finds that Petitioner has not shown the Court how he was unavoidably

prevented from discovery of the facts upon which he must rely to present his claim for relief. In

his initial petition for post-conviction relief in 2010, he argued ineffective assistance of counsel

and stressed an alleged failure of counsel and experts to focus more on a diagnosis of antisocial

personality disorder. He further challenged the assembly of a three-judge panel. But he never

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pursued his present intellectual disability claim until now, although he claims to have had the

intellectual disability since before birth. This omission does not somehow transform his exhibits

into material he was unavoidably prevented from discovering. See State v. Holing, 11th Dist. No.

2007-P-0034, 2008-0hio-2394, at if82.

Petitioner cites to multiple U.S. Supreme Court cases decided after February 22, 2010, to

support his claim that the Supreme Court has recognized a new federal or state right that applies

retroactively to him and, thus, that he has met his burden under R.C. 2953.23(A)(l)(a). Petition,

at 12-13; citing Hall v. Florida (2014), 572 U.S.

, 134 S.Ct. 1986, 188 L.Ed.2d 1007;

Brumfield v. Cain (2015), 576 U.S._, 135 S.Ct. 2269, 192 L.Ed.2d 356; Missouri v. Frye

(2012), 566 U.S._, 132 S.Ct. 1399, 182 L.Ed.2d 379; Lafler v.Cooper (2012), 566 U.S._,

132 S.Ct. 1376, 182 L.Ed.2d 398; Martinez v. Ryan (2012), 566 U.S._, 132 S.Ct. 1309, 182

L.Ed.2d 272.

The Hall Court struck down a Florida law that required an IQ score of 70 for an

intellectual disability claim because it failed to take into account the standard error of

measurement in IQ testing. Hall, at 2001. But Hall contained no express language as to

retroactivity and has not been made retroactive. See In re Henry, 757 F.3d 1151 (11th Cir.2014),

at 1153; see also In re Hill, 777 F.3d 1214 (11th Cir.2015), at 1223-1225; see also Goodwin v.

Steele, 814 F.3d 901 (8 1h Cir.2014), at 904.

The Brumfield Court held that the district court in a federal habeas claim, "based on an

unreasonable determination of the facts in light of the evidence presented[,]" erred in its rejection

of an Atkins claim and its denial of an evidentiary hearing when the petitioner satisfied the

requirements under 28 U.S.C. 2254(d)(2). Brumfield, at 2273. "The Supreme Court limited its

holding in Brumfield to an application of Louisiana law to the evidence presented in that case.

'

The Court did not purport to alter its prior teachings about intellectual disability, procedural

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default, or the actual innocence exception." Prieto v. Zook, 791 F.3d 465 (4th Cir.2015), fn. 6.

Brumfield also does not contain any express language as to retroactivity. See Perez-Mejias v.

United States, P.R.No. 12-1462 (PG), 2013 U.S.Dist. LEXIS 156520 (Oct. 30, 2013), at 8, citing

Gallagher v. United States, 711F.3d315 (2"d Cir.2013), at 316.

The Frye Court held that "[t]he Sixth Amendment right to effective assistance of counsel

extends to the consideration of plea offers that lapse or are rejected." Frye, at syllabus. But Frye

did not establish a newly recognized right; it "merely applied the Sixth Amendment right to

effective assistance of counsel according to the test first articulated in [Strickland], and

established in the plea-bargaining context in [Hill]." Hare v. United States, 688 F.3d 878 (7th

Cir.2012), at 879, citing Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80

L.E.2d 674, and Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203; see also

State v. Thomas, 8th Dist. No. 99972, 2014-0hio-1512, at ~IO; see also State v. Vinson, 11th Dist.

No 2013-L-015, 2013-0hio-5826, at ~23; see also State v. Hicks, 8th Dist. No. 99119, 2013Ohio-1904, at ~14. Frye also contains no express language as to retroactivity. Niblack v.

Brighthaupt, Conn. No. 3:12cvl 740(AWT), 2016 U.S.Dist. LEXIS 35931 (Mar. 21, 2016), at 11,

citing Gallagher.

The Lafler Court held as follows:

Where counsel's ineffective advice led to an offer's rejection, and where the

prejudice alleged is having to stand trial, a defendant must show that but for the

ineffective advice, there is a reasonable probability that the plea offer would have

been presented to the court, that the court would have accepted its terms, and that

the conviction or sentence, or both, under the offer's terms would have been less

severe than under the actual judgment and sentence imposed.

Lafler, at syllabus. But "[Lafler] does not establish a newly recognized right to effective

assistance of counsel" and "does not contain any express language as to retroactivity." (Internal

citations omitted.) Watkins v. United States, E.D.Mo. No. 4:1lCVl118 HEA, 2014 U.S. Dist.

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LEXIS 89054 (June 30, 2014), at 30-31; see also Thomas, at ~10; see also Vinson, at ~23; see

also Hicks, at ~14.

The Martinez Court held:

Where, under state law, ineffective-assistance-of-trial-counsel claims must be

raised in an initial-review collateral proceeding, a procedural default will not bar a

federal habeas court from hearing those claims if, in the initial-review collateral

proceeding, there was no counsel or counsel in that proceeding was ineffective.

But, "Martinez did not establish a new right enabling [petitioners] to file an untimely petition."

State v. Stephens, 9th Dist. No. 27957, 2016-0hio-4942, at ~10, citing State v. Glover, 8th Dist.

Nos. 100330 and 100331, 2014-0hio-3228; see also Bennett v. Link, E.D.Pa. No. 15-4144, 2016

U.S. Dist. LEXIS 70265 (May 26, 2016), at 9. "Rather, Martinez simply 'established an

equitable doctrine for overcoming procedural default in certain limited circumstances.'" State v.

Waddy, IO'h Dist. No. 15AP-397, 2016-0hio-4911, at ~61, citing Glover, at ~28. "The

[Martinez] Court expressly stated that its holding does not apply to successive collateral

proceedings." Waddy, at ~61, citing Martinez, at 1320.

Clearly, federal and state courts alike have consistently found that the cases relied upon

by Petitioner do not recognize a new right or do not apply retroactively. Consequently, the Court

finds that the Petitioner's claims are not based on a new federal or state right recognized by the

U.S. Supreme Court that applies retroactively to him.

Petitioner mistakenly claims the criteria in R.C. 2953.23(A) are not jurisdictional. Yet,

the Ninth District Court of Appeals has stated that "the statutory requirements set forth in R. C.

2953.23(A)(l) are jurisdictional in nature." (Emphasis added.) State v. Phillips, 9th Dist. No.

27733, 2016-0hio-1198, at ~17, citing State v. Taylor, 9th Dist. No. 14CA010549, 2014-0hio5738, at ~9. "A defendant's failure to* **meet his burden under R.C. 2953.23(A)(l) deprives

a trial court ofjfuisdiction to entertain the petition." Id at ~8, citing Taylor, at ~9.

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R.C. 2953.23(A) states in part that "a court may not entertain [an untimely] petition or a

second petition or successive petitions for similar relief on behalf of a petitioner unless" the

petitioner meets his burden under R.C. 2953.23(A)(l) or (A)(2). (Emphasis added.) Here, the

Petitioner argues that the presence of the word "may" instead of the word "shall" demonstrates

the legislature's intent to give the trial court discretion to entertain successive petitions. But he

fails to acknowledge that the word "may" is clearly coupled with the word "not" in the statute.

The phrase "may not" should be construed to impose a prohibition and is synonymous with

"shall not." See Waite v. Cage (Jn re Moye), 458 Fed.Appx. 385 (5th Cir. 2012), fn. 7. The

Eleventh District Court of Appeals has dealt with this issue directly and held:

The statutory use of the word "may" is generally construed to make the provision

in which it is contained optional, permissive, or discretionary. However, the word

"may" can be construed to have the ordinary meaning of "shall," in the mandatory

sense of the term. In order to construe the term "may" to have the unusual

application of a mandatory term, it must clearly appear that the General Assembly

intended that it be so construed, from a general view of the statute under

consideration.

Upon reviewing R.C. 2953.23(A), it is evident that the General Assembly

intended "may" to have a mandatory effect by coupling it with the word "not." In

typical statutes, the word may is coupled with a verb, such as "may borrow" and,

consequently, is considered to grant discretion. On the other hand, the phrase

"may not" does not evince any discretion and, in fact, is generally understood to

be a man'.datory direction. We conclude the criteria set forth in R.C. 2953.23 are

mandatory, and the trial court does not have the discretion to consider a second,

successive petition for postconviction relief that does not meet those

requirements.

(Internal citations omitted.) State v. Davie, l l'h Dist. No. 2000-T-0104, 2001-0hio-8813, at 16-

17.

Petitioner also claims that R.C. 2953.23(A) is unconstitutional on its face because it

violates the Supremacy Clause of the United States Constitution, the doctrine of separation of

powers, and the "due course oflaw" and "open courts" provisions of the Ohio Constitution.

However, Ohio courts have consistently held that R.C. 2953.23 is constitutional and does not

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violate the Supremacy Clause, separation of powers, or the "due course of law" or "open courts"

provisions of the Ohio Constitution. State v. Smith, 9th Dist. No. 04CA008546, 2005-0hio-2571,

at 'l!8, citing State v. Taylor, 8th Dist. No. 80271, 2002-0hio-2742, at 'l!13; see also State v.

Cleveland, 9th Dist. No. 08CA009406, 2009-0hio-397, at 'l!30; see also Davie, at 14; see also

State v. Byrd (Aug. 21, 2001), 1st Dist. No. C-010379; see also State v. McGuire (Apr. 23, 2001),

12th Dist. No. CA2000-10-011, at 25; see also State v. Robinson, 8'h Dist. No. 100077, 2014Ohio-397, at 'l!l 1.

Petitioner then claims that his successive petition should be reviewed under the

preponderance of the evidence standard (not a clear and convincing threshold) set forth by the

Supreme Court of Ohio in Stave v. Lott for successive petitions that raise an Atkins claims for the

first time. State v. Lott, 97 Ohio St.3d 303, 2002-0hio-6625, 779 N.E.2d 1011. Although the

Court found Lott's successive petition to be more akin to a first petition, it "did not* * *

establish a new category of successive petitions that must be treated as first petitions." State v.

Hartman, 9th Dist. No. 25055, 2010-0hio-5734, at 'l!10.

In Lott, the petitioner met his burden under R.C. 2953.23(A)(l) because the U.S.

Supreme Court had "recognized a new federal right applying retroactively to convicted

defendants facing the death penalty" recently in Atkins, which had been decided less than six

months prior to Lott. Lott, at 306. But, the Lott Court expressly held:

For all other defendants who have been sentenced to death, any petition for

postconviction relief specifically raising an Atkins claim must be filed within 180

days from the date of the judgment in this case. Petitions filed more than 180

days after this decision must meet the statutory standards for untimely and

successive petitions for postconviction relief.

Id at 307; see also State v. Murphy, 3rd Dist. No. 9-04-36, 2005-0hio-423, at 'l!20. Here,

however, we are well beyond the 180-day period stated in Lott. Petitioner was indicted in this

case over five years after Lott was decided. His first petition for post-conviction relief was filed

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over seven years after Lott and the pending petition was filed over thirteen years after Lott.

Petitioner further claims that he was denied effective assistance of counsel. In Strickland

v. Washington, the U.S. Supreme Court defined the two-step process used to determine whether

the right to effective counsel has been violated: The defendant must show that(!) Counsel's

performance was deficient, and (2) The deficient performance prejudiced the defense. Strickland

v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.E.2d 674. The petitioner has the

burden of proof on the issue of counsel's ineffectiveness since properly licensed attorneys in

Ohio are presumably competent. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 301, 209 N.E.2d

164, 31 0.0.2d 567. "(A] court must indulge a strong presumption that counsel's conduct falls

within the wide range ofreasonable professional assistance." State v. Johnson (2006), 112 Ohio

St.3d 210, 232, 2006-0hio-6404, 858 N.E.2d 1144.

"[A] party filing a successive petition for postconviction relief must meet the

jurisdictional requirements ofR.C. 2953.23(A)(l) before the merits of the ineffectiveness claim

can be entertained." State v. Noling, I l'h Dist. No. 2007-P-0034, 2008-0hio-2394, at i/67. Here,

Petitioner has failed to meet his burden under R.C. 2953.23(A)(l) and the Court cannot entertain

his ineffective assistance of counsel claims.

Nonetheless, Petitioner's exhibits include recent reports from Dr. Grant and Dr.

Greenspan opining that Petitioner has intellectual disability. Exhibit I, at 12; Exhibit 2, at 11.

Exhibit 3 is an affidavit from Dr. Smalldon averring that intellectual disability is not his primary

area of expertise, and had someone with "advanced expertise" been consulted Dr. Smalldon

"might very well have arrived at a different conclusion on the mental retardation issue than the

one (he] stated when (he] appeared as an expert witness at the mitigation hearing." Exhibit 3, at

i/8-10. Even assuming arguendo that Petitioner had met his burden under R.C. 2953 .23(A)(I ),

"a postconviction petition does not show ineffective assistance merely because it presents a new

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expert opinion that is different from the theory used at trial." State v. Reynolds (Oct. 27, 1999),

9th Dist. No. 19062, at 11; see also State v. Dovala, 9th Dist. No. IOCA009896, 201 l-Ohio-3110,

at if2 l. When "counsel has presented a meaningful concept of mitigation, the existence of

alternate or additional mitigation theories does not establish ineffective assistance." State v.

Combs (Aug. 24, 1994), I'' Dist. No. C-930498, at 105.

"[T]he doctrine of res judicata bars a petitioner from raising issues in a petition for

postconviction relief that could have been raised at trial or on direct appeal." State v. Hall (Mar.

13, 1996), 9th Dist. No. 95CA006065, at 5. The Supreme Court of Ohio has stated that in no

event is a petition for post-conviction relief a method to appeal a judgment of conviction. State

v. Steffen, 70 Ohio St.3d 399, 410, 1994-0hio-1lI,639 N.E.2d 67. "[B]ecause an appeal from

the judgment of a conviction is limited to the trial court record, a petition for post-conviction

relief may defeat the res judicata bar if its claims are based on evidence outside the record.

When a petitioner offers evidence dehors the record, he must show that the claim could not have

been raised on appeal, based on evidence in the record." (Internal citation omitted.) Reynolds, at

7. The Supreme Court of Ohio has also held that, absent plain error, failure to raise an Atkins

claim constitutes a waiver of the claim. State v. Frazier, 115 Ohio St.3d 139, 161, 2007-0hio5048, 873 N.E.2d 1263.

Here, Petitioner's claims could have been raised at trial, on appeal, or in his timely first

petition for post-conviction relief, and he has not shown how he has been unavoidably prevented

from raising them before now. Therefore, the Court finds that Petitioner's claims are barred by

the doctrine of res judicata.

The Defendant is not entitled to a hearing as a matter of right. See State v. Jackson

(1980), 64 Ohio St.2d 107, 110, 413 N.E.2d 819. In State v. Kartman, the Court held thatR.C .

.•

2953.2l(A) and (E) did not require the trial court to hold a hearing because the issues'faised in

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the inmate's petition should have been raised on direct appeal and the inmate, therefore, had no

grounds for relief from the conviction. State v. Kartman, 7'h Dist. No. 04-BE-l 3, 2005-0hio6441, at ,31. When res judicata bars a claim an inmate makes in his petition for post-conviction

relief, it is not error for the trial court to decline to hold a hearing on the petition. See State v.

Hicks, 3th Dist. No. 86334, 2006-0hio-798, at ,9; see also State v. Pryor, 5th Dist. No. 05-CA-52,

2005-0hio-6656, at ,31. "[T]he trial court need only conduct an evidentiary hearing where the

petition, its supporting documents and the record reveal the petitioner has set forth sufficient

operative facts to establish substantive grounds for relief." State v. Harrington, 4th Dist. No.

06CA3093, 2007-0hio-3796, at ,12. The Court finds that Petitioner has not set forth sufficient

operative facts to establish substantive grounds for relief and a hearing is not necessary in this

matter.

The Court finds that the Petitioner has not met his burden under R.C. 2953.23(A)(l).

Therefore, the Court lacks jurisdiction to consider Petitioner's second (or successive) petition for

post-conviction relief and is not required to prepare findings of fact and conclusions of law. See

State v. Robinson, 9th Dist. No. 27480, 2015-0hio-2376, at ,7; see also State v. Powell, 9th Dist.

No. 14CA010565, 20,15-0hio-145, at ,7.

Accordingly, the Court finds the Petitioner's Post-Conviction Petition and First

Amendment to Post-Conviction Petition not well taken and DENIES the same.

IT IS SO ORDERED.

cc: Richard S. Kasay, Assistant Prosecutor

Shawn P, Welch, Assistant State Public Defender

Rachel Troutman, Assistant State Public Defender

Jessica L. Carrico, Assistant State Public Defender

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