[Cite as State v. Primeau, 2017-Ohio-1162.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104657



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                  PETER A. PRIMEAU
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-11-556885-A

        BEFORE: Boyle, J., Keough, A.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: March 30, 2017
ATTORNEYS FOR APPELLANT

Donald J. Malarcik
54 E. Mill Street, Suite 400
The Gothic Building
Akron, Ohio 44308

Seneca Konturas
125 S. Water Street, Suite 3/4
Kent, Ohio 44240


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Gregory J. Ochocki
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

       {¶1} Defendant-appellant, Peter Primeau, appeals a judgment denying his

petition for postconviction relief. He raises one assignment of error for our review:

       The trial court erred when it denied Mr. Primeau’s petition for
       postconviction relief, finding that Mr. Primeau’s trial counsel representation
       did not reach the level of ineffective assistance of counsel, and that Mr.
       Primeau was not prejudiced or denied effective assistance of counsel to an
       extent that would have altered the outcome of the case.

       {¶2} Finding no merit to his appeal, we affirm.

I. Procedural History

       {¶3} In January 2012, Primeau was convicted of two counts of murder and one

count of felonious assault for beating his wife to death. He was sentenced to 15 years to

life in prison.

       {¶4} Primeau directly appealed his convictions, raising 13 assignments of error.

This court overruled his assigned errors and affirmed his convictions.         See State v.

Primeau, 8th Dist. Cuyahoga No. 97901, 2012-Ohio-4528. The Ohio Supreme Court

declined to accept jurisdiction of Primeau’s appeal. See State v. Primeau, 134 Ohio

St.3d 1488, 2013-Ohio-902, 984 N.E.2d 30. The United States Supreme Court also

denied Primeau’s writ of certiorari. Primeau v. Ohio, ___ U.S. ___, 134 S.Ct. 335, 187

L.Ed.2d 158 (2013).

       {¶5} On October 7, 2014, Primeau filed a writ of habeas corpus in federal court.

Primeau v. Kelly, N.D.Ohio No. 3:14 CV 2231. Primeau moved to stay the federal court

proceedings to exhaust certain state law claims contained in his writ. The District Court
granted his motion to stay the federal court proceedings so that he could submit his state

law claims.

       {¶6} Primeau subsequently filed his petition for postconviction relief on

November 9, 2015. The trial court denied his petition on May 25, 2016. It is from this

judgment that Primeau now appeals.

II. Untimely Petition for Postconviction Relief

       {¶7} R.C. 2953.21 through 2953.23 set forth the means by which a convicted

defendant may seek to have the trial court’s judgment or sentence vacated or set aside

pursuant to a petition for postconviction relief. A defendant’s petition for postconviction

relief is a collateral civil attack on his or her criminal conviction. See State v. Gondor,

112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 48. The statute affords relief

from judgment where the petitioner’s rights in the proceedings that resulted in his

conviction were denied to such an extent the conviction is rendered void or voidable

under the Ohio or United States Constitutions. R.C. 2953.21(A); State v. Perry, 10 Ohio

St.2d 175, 226 N.E.2d 104 (1967), paragraph four of the syllabus.

       {¶8} R.C. 2953.21(A)(2) provides that a petition for postconviction relief must

be filed within 365 days from the filing of the trial transcripts in the petitioner’s direct

appeal or, if a direct appeal was not pursued, 365 days after the expiration of the time in

which a direct appeal could have been filed.1 Here, Primeau did not file his petition until


       1
        R.C. 2953.21(A)(2) was amended, effective March 23, 2015, to provide 365
days, rather than 180 days. See Sub.H.B. 663 (2014). Under either deadline, Primeau’s
motion is untimely.
well beyond the 365 days. Thus, his petition is untimely.

       {¶9} R.C. 2953.23(A)(1) permits a trial court to entertain an untimely petition

only if:

       (1) the petitioner was unavoidably prevented from discovering the facts on
       which the petition is predicated, or (2) the United States Supreme Court has
       recognized a new federal or state right that applies retroactively to the
       petitioner and the petition asserts a claim based on that new right.

R.C. 2953.23(A)(1)(a).

       {¶10} If the petitioner is able to satisfy one of these threshold conditions, he or she

must then demonstrate that, but for the constitutional error at trial, no reasonable

factfinder would have found him or her guilty of the offenses of which he was convicted.

R.C. 2953.23(A)(1)(b).

       {¶11} Therefore, unless it appears from the record that Primeau was unavoidably

prevented from discovering the facts upon which he relied in his petition, or the United

States Supreme Court has recognized a new federal or state right that applies retroactively

to Primeau and, if one of those apply, that but for constitutional error at trial, no

reasonable factfinder would have found Primeau guilty, we are bound to conclude the

trial court was without jurisdiction to consider his petition for postconviction relief.

III. Analysis

       {¶12} Primeau does not even allege, let alone establish, any of the requirements

necessary to bring an untimely petition for postconviction relief. Primeau does not claim

that he was unavoidably prevented from discovering facts upon which he relied in his

petition, or that the United States Supreme Court has recognized a new federal or state
right that applies retroactively to him. Thus, he does not meet the threshold requirement

for the trial court to consider his petition.     The trial court was, therefore, without

jurisdiction to consider his petition.

       {¶13} Primeau does claim that he was previously unable to raise the arguments

that he is raising here (ineffective assistance of counsel claims) because he was

represented by the same counsel throughout his appeals. Normally, a petitioner cannot

raise a claim in a postconviction proceeding that he or she raised or could have raised in a

direct appeal because it would be barred by res judicata. State v. Montgomery, 8th Dist.

Cuyahoga No. 99452, 2013-Ohio-4193, ¶ 42, citing Perry, 10 Ohio St.2d 175, 226 N.E.2d

104. Courts have held, however, that when a defendant is represented by the same

counsel at trial and throughout his appeals, res judicata does not bar the defendant from

raising ineffective assistance of counsel claims in a postconviction proceeding. See State

v. Cole, 2 Ohio St.3d 112, 113, 443 N.E.2d 169 (1982), citing State v. Carter, 36 Ohio

Misc. 170, 304 N.E.2d 415 (1973). This well-settled principle would apply if Primeau

had timely filed his petition for postconviction relief. It has no bearing on an untimely

petition.

       {¶14} Further, Primeau asserts that he filed his petition pursuant to the instructions

of the United States District Court judge in his habeas proceeding, staying his case until

he exhausted his “potentially meritorious unexhausted [state law] claims.” The fact that

the United States District Court judge stayed Primeau’s habeas proceeding, however, does

not affect our analysis.
       {¶15} Accordingly, we find no error on the part of the trial court in dismissing

Primeau’s petition for postconviction relief.

       {¶16} Judgment affirmed.

       It is ordered that appellee recover from appellant the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
EILEEN T. GALLAGHER, J., CONCUR
