[Cite as State v. Houston, 2019-Ohio-4787.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellee,                :
                                                             No. 108156
                 v.                                 :

CARDELL D. HOUSTON,                                 :

                 Defendant-Appellant.               :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: November 21, 2019


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                               Case No. CR-16-611762-A


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Gregory J. Ochocki, Assistant Prosecuting
                 Attorney, for appellee.

                 Mark A. Stanton, Cuyahoga County Public Defender, and
                 Noelle A. Powell and Jeffrey M. Gamso, Assistant Public
                 Defenders, for appellant.


RAYMOND C. HEADEN, J.:

                   Defendant-appellant Cardell D. Houston (“Houston”) appeals from

the trial court’s denial of his petition for postconviction relief without a hearing. For

the reasons that follow, we affirm.
Procedural and Substantive History

              On December 8, 2016, in Cuyahoga C.P. No. CR-16-611762-A,

Houston was charged with one count of aggravated murder, two counts of murder,

two counts of felonious assault, and one count of having weapons while under

disability. Five of the six counts carried one- and three-year firearm specifications.

After a bench trial, Houston was found guilty of both counts of murder and both

counts of felonious assault. For this case and four separate cases, the trial court

sentenced Houston to an aggregate sentence of 251/2 years to life.

              Houston appealed, arguing among other things that he received

ineffective assistance of counsel based on the failure to object to the use of True

Allele DNA technology. This court overruled Houston’s assignments of error. State

v. Houston, 8th Dist. Cuyahoga Nos. 106470 and 106055, 2018-Ohio-3043.

              The following factual history was set forth in Houston’s direct appeal:

      On November 20, 2015, William Barnes, Jr. was shot and killed in his
      car on West 104th Street near Western Avenue in Cleveland, Ohio.
      Surveillance video from two nearby homes captured the incident and
      showed that at approximately 2:06 p.m. a blue Chevy Trailblazer
      appeared and parked on West 104th Street near Western Avenue.
      Three minutes later Barnes appeared in a Hyundai Sonata and parked
      behind the Trailblazer. About one minute later a black male exited the
      Trailblazer and entered the front passenger seat of Barnes’[s] vehicle.
      Just under two minutes later, a second black male exited the Trailblazer
      and entered the rear passenger seat of Barnes’ automobile. Less than a
      minute thereafter flashes of light were visible inside the rear passenger
      compartment of the Sonata; the front passenger exited the vehicle and
      seconds later the right rear passenger exited the vehicle as well. The
      surveillance video showed that after exiting, the rear passenger placed
      his left hand on the roof of the Sonata just above the right rear
      passenger door while leaning with his right arm extended back into the
      passenger compartment of the vehicle. A neighbor witnessed the
      shooting and testified to seeing two shots fired through an open door
      of Barnes’[s] vehicle from the passenger side of the vehicle. The
      posture of the right rear passenger in the video was consistent with this
      testimony. That passenger then turned to flee back to the Trailblazer
      and an object consistent with the appearance of a firearm could be seen
      in his right hand. Nine millimeter shell casings were later recovered by
      police from both inside the Sonata and on the sidewalk near the
      passenger side of the vehicle.

      The two persons fled in the Trailblazer and shortly thereafter Barnes’[s]
      Sonata slowly rolled forward into a van parked in front of it. Neighbors
      who heard, and saw, part of the shooting called 911 and Barnes was
      found shot and hunched over in the driver seat of the Sonata. He was
      transported to MetroHealth hospital where he was ultimately
      pronounced dead.

      An autopsy was performed and Dr. Erica Armstrong testified that
      Barnes had sustained five gunshot wounds. Three gunshot wounds
      were to Barnes’[s] back right shoulder, the upper portion of his back on
      the right side and his lower right back. Dr. Armstrong detailed the path
      of those gunshots as back to front and right to left through Barnes’[s]
      body. The direction of these wounds was consistent with the state’s
      theory at trial that Barnes was shot by the passenger in the right rear
      seat of his vehicle.

      Investigating detectives swabbed the roof of Barnes’[s] car where the
      surveillance video reflected the shooter touching the vehicle and the
      Cuyahoga County Medical Examiner’s Office linked the major
      component of the mixture of DNA obtained from those swabs to
      Cardell Houston. A forensic scientist testified at trial that, to a
      reasonable degree of scientific certainty, in the absence of an identical
      twin, Cardell Houston was the source of the major DNA component
      obtained from the roof of Barnes’[s] car where the shooter had placed
      his hand.

Houston at ¶ 3-6.

              On September 4, 2018, Houston filed a petition for postconviction

relief. His ground for relief asserted that he was denied his right to effective

assistance of counsel based on his attorney’s failure to investigate the DNA evidence
and science relevant to this case. He attached a declaration from Dr. Dan E. Krane,

a DNA expert, explaining the limitations of the particular type of DNA mixture

involved in this case, to his petition.

               On December 27, 2018, the trial court denied Houston’s petition

without a hearing. The court stated its reasoning as follows:

      Even if the court were to consider Dr. Krane’s declaration, nonetheless
      in substance the declaration merely states “the report indicates that
      DNA believed to be Cardell Houston’s was a major contributor to a
      mixture of DNA used to convict Mr. Houston. The fact that someone is
      a major contributor does not mean that he had more contact or more
      recent contact than other contributors with the site from which DNA
      was taken.” (Decl. of Dr. Kerns ¶ 2). However, nowhere does the
      declaration or the motion explain how this testimony constitutes
      sufficient operative facts to establish that the defense was prejudiced
      by the alleged ineffective assistance of counsel.

      Dr. Krane’s declaration includes statements concerning potential
      analysis of the DNA evidence however neither the petition nor its
      attachments request discovery under R.C. 2953.21(A)(1)(D). And in
      the absence of results the effect of any such analysis on trial is
      speculative. Speculation cannot be used to satisfy the defendant’s
      initial burden to submit evidentiary documents containing sufficient
      operative facts to establish a right to a hearing.

      Accordingly, the petitioner has failed to satisfy his initial burden to
      establish an entitlement to a hearing.

               Houston appeals, presenting a single assignment of error for our

review.
Law and Analysis

              In Houston’s sole assignment of error, he argues that the trial court

erred when it dismissed his petition for postconviction relief without a hearing

because he had demonstrated a genuine issue of material fact.

              A petition for postconviction relief is a collateral civil attack on a

criminal judgment and is governed by R.C. 2953.21(A)(1)(a), which provides:

      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 file a
      petition in the court that imposed sentence, stating the grounds for
      relief relied upon, and asking the court to vacate or set aside the
      judgment or sentence or to grant other appropriate relief. The
      petitioner may file a supporting affidavit and other documentary
      evidence in support of the claim for relief.

A petitioner is not automatically entitled to a hearing. State v. West, 8th Dist.

Cuyahoga No. 92800, 2009-Ohio-6464, ¶ 14, citing State v. Calhoun, 86 Ohio St.3d

279, 282, 714 N.E.2d 905 (1999). Rather, the statute provides that before granting

a hearing on the petition, the court “shall determine whether there are substantive

grounds for relief.” R.C. 2953.21(D). The statute places the initial burden of

demonstrating a cognizable claim of constitutional error on the petitioner in order

to establish that they are entitled to a hearing. State v. Jackson, 64 Ohio St.2d 107,

413 N.E.2d 819 (1980).

              To establish ineffective assistance of counsel, a defendant must show

(1) that counsel’s performance fell below an objective standard of reasonable

representation, and (2) that had counsel performed competently, there was a
reasonable probability of a different outcome. Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Where, as here, the petition is

based on alleged ineffective assistance of counsel, the petitioner bears the initial

burden “to submit evidentiary documents containing sufficient operative facts to

demonstrate the lack of competent counsel and also that the defense was prejudiced

by counsel’s ineffectiveness.” (Emphasis sic.) Jackson at 111.

               In determining whether the trial court properly denied Houston’s

petition without a hearing, this court reviews for abuse of discretion. State v. Smith,

8th Dist. Cuyahoga No. 93534, 2010-Ohio-1869, ¶ 23, citing State v. Banks, 10th

Dist. Franklin No. 08-AP-722, 2009-Ohio-1667, ¶ 10. An abuse of discretion

connotes more than an error of law or judgment, it entails a decision that is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983).

               Houston argues that his trial counsel was ineffective for failing to

effectively challenge the only evidence against him, a mixture of touch DNA.

Houston provided Dr. Krane’s expert declaration that explained the type of DNA

evidence involved in this case, as well as the type of explanation that Dr. Krane could

have provided at trial if he had been called as an expert. Houston also argues that

based on his trial counsel’s cross-examination of the state’s DNA expert, it is clear

that counsel failed to consult with a DNA expert. If he had, Houston argues, counsel

could have questioned the state’s expert regarding how many contributors the DNA

mixture may have had, how some people shed more DNA than others, the possibility
that the DNA was transferred from one person to another person and then

transferred to an object, and the inability to determine which contributor to the DNA

evidence had deposited their sample most recently.

               When determining whether counsel performance was deficient,

courts “must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Strickland, 466 U.S. 689, 104

S.Ct. 2052, 80 L.Ed.2d 674. This court has previously found that the decision to rely

on cross-examination rather than retaining a DNA expert does not constitute

ineffective assistance of counsel. State v. Blevins, 8th Dist. Cuyahoga No. 106115,

2018-Ohio-3583, ¶ 31, citing State v. Nicholas, 66 Ohio St.3d 431, 436, 613 N.E.2d

225 (1993). Further, in his direct appeal, this court rejected Houston’s argument

that his counsel was ineffective for failing to fully explore potential issues with his

DNA evidence during cross-examination.            Houston, 8th Dist. Cuyahoga Nos.

106470 and 106055, 2018-Ohio-3043, at ¶ 22. Houston’s argument in this appeal

is similarly insufficient to satisfy the first prong of the Strickland test.

               Even if we agree with Houston that his trial counsel was

constitutionally deficient for failing to call a DNA expert, or failing to effectively

cross-examine the state’s expert, Houston has not established prejudice. Dr. Krane’s

declaration provides additional information about touch DNA evidence that likely

would have been relevant at Houston’s trial. The declaration does not, however,

make any attempt to conclude how the outcome of Houston’s trial would have been

different, or even if it would have been different. Dr. Krane actually states in his
declaration that, without having seen the raw DNA data, he could not speak to the

specifics of this case. Houston is required to show that there is a reasonable

probability that, but for counsel’s conduct, the result of the proceeding would have

been different. Houston provides examples of both how cross-examination of the

state’s DNA expert could have been more incisive, and the kinds of information

about DNA evidence that his own expert could have provided. Neither of these

establishes a reasonable probability that the result of his trial would have been

different. Therefore, we cannot conclude that the trial court abused its discretion in

denying Houston’s petition where he failed to provide sufficient operable facts

showing that he received ineffective assistance of counsel.

              Judgment affirmed.

      It is ordered that appellee recover from appellant 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.



RAYMOND C. HEADEN, JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS;
MARY J. BOYLE, P.J., CONCURS IN JUDGMENT ONLY
