[Cite as State v. Shabazz, 2014-Ohio-3142.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100623




                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                   JAMIL A. SHABAZZ
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-07-495551-A

        BEFORE: Keough, J., Celebrezze, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: July 17, 2014
APPELLANT

Jamil A. Shabazz, pro se
Inmate Number 541-031
Allen Correctional Institution
Lima, Ohio 45802

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Joseph J. Ricotta
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

          {¶1} Defendant-appellant, Jamil A. Shabazz, appeals the trial court’s decision

denying his “motion for leave asking for a new trial.” For the reasons that follow, we

affirm.

          {¶2} Shabazz has filed numerous appeals following his 2007 murder conviction.

Most recently in State v. Shabazz, 8th Dist. Cuyahoga No. 98601, 2013-Ohio-267

(“Shabazz IV ”), this court set forth the procedural history of his case and appeals.

          Appellant was indicted on April 26, 2007, charged with one count of
          aggravated murder with a three-year firearm specification, a notice of prior
          conviction and a repeat violent offender specification. Prior to the
          commencement of trial, appellant executed a jury waiver as to the notice of
          prior conviction and repeat violent offender specification.

          Appellant was found guilty of the lesser-included offense of murder as well

          as the attached three-year firearm specification by a jury verdict rendered on

          November 19, 2007. The trial court found appellant guilty of the notice of

          prior conviction and repeat violent offender specifications. Appellant was

          sentenced to a prison term of 15 years to life on the murder charge to run

          consecutively to a three-year prison term for the firearm specification.

          Appelant brought a direct appeal of his conviction in State v. Shabazz

          Abdul, 8th Dist. No. 90789, 2009-Ohio-225 (“Shabazz I ”). Appellant

          asserted two assignments of error: ineffective assistance of counsel and

          the trial court’s denial of his Crim.R. 29 motion for acquittal. We rejected

          both assignments of error and affirmed the conviction.
       On May 7, 2009, appellant applied to reopen our judgment in Shabazz I
       based on a claim of ineffective assistance of appellate counsel. In State v.
       Shabazz Abdul, 8th Dist. No. 90789, 2009-Ohio-6300 (“Shabazz II” ), we
       denied appellant’s application.

       While [Shabazz] II was pending, appellant filed a petition for

       post-conviction relief in the trial court.     The state filed a motion for

       summary judgment, which was granted by the trial court. On appeal in

       State v. Abdul Shabazz, 8th Dist. No. 94738, 2010-Ohio-5789 (“Shabazz III

       ”), appellant asserted seven assignments of error. We rejected all seven of

       appellant’s errors and affirmed the judgment of the trial court.* * *

Shabazz IV at ¶ 2-6.

       {¶3} In Shabazz IV, Shabazz appealed the trial court’s 2012 denial of his motion

for a new trial, setting forth four assignments of error pertaining to alleged procedural

errors at the time of indictment and during trial, including the jury instructions and

amending the indictment. Id. at ¶ 7.

       {¶4} This court found that Shabazz’s motion was not only time barred pursuant to

Crim.R. 33, but also that his assignments of error were barred by the doctrine of res

judicata because each of his assigned errors pertained to matters that could have been

raised in his direct appeal. Id. at ¶ 10-11. We affirmed the trial court’s judgment

denying his motion for a new trial. Id. at ¶ 11-12.

       {¶5} In September 2013, Shabazz moved the trial court for “leave asking for a new

trial pursuant to Crim.R. 33(B)” contending that he recently received newly discovered

evidence that was not available at trial. Based on this new evidence, Shabazz raised
various arguments in support of his motion, including (1) the prosecutor committed

misconduct by withholding evidence and allowing perjured and hearsay testimony, and

(2) he received ineffective assistance of counsel because his trial counsel proceeded with

trial even though he had not received all discovery prior to trial. Specifically, Shabazz

contends that the witness statements made by Dwayne Saunders, Theodore Carter, and

William Green, and the journal entries of conviction depicting Green’s criminal history

were not given to defense; thus, the discovery rules were not complied with and the

evidence demonstrates that the trial testimonies by these witnesses were improper.

       {¶6} The trial court denied Shabazz’s motion for leave for a new trial by

summarily denying his motion for a new trial. Shabazz now appeals from this decision

raising five assignments of error.

       {¶7} In his first assignment of error, Shabazz contend that the trial court erred by

denying his “motion for leave in accordance with Crim.R. 33 due to 52(B) plain error

with memorandum of support to support this claims without cause.” Reviewing the

arguments made under his second, third, and fourth assignments of error, we find that

Shabazz merely dissects the arguments raised under his first assignment of error and

separately assigns them as errors.1 Shabazz’s fifth assignment of error is a “cumulative


          “Assignment of Error II. State violated the Due Process rights of Appellant by withholding
       1


evidence thus causing a extreme prejudice at trial that change the outcome of the case.
         “Assignment of Error III. Prosecutorial misconduct by the State for allowing perjure
testimony at trial by there alleged witnesses that cause a prejudice to severe to overcome at trial.
         “Assignment of Error IV. Trial counsel violated the Sixth Amendment Constitutional rights
of his client by trying the case without Criminal Rule #16, this act prejudice Appellant from not being
afforded compotent counsel at trial.” [sic.]
effect” doctrine argument.2 Accordingly, we will address all of his assignments of error

together.

       {¶8} In his assignments of error, Shabazz reasserts the arguments raised in his

motion for a new trial filed with the trial court. He contends that the state engaged in

misconduct by failing to provide discovery, specifically, the witness statements of

Saunders, Carter, and Green and also Green’s criminal record. Because the state did not

provide discovery, he claims that his counsel was ineffective for going forward with trial

without this evidence.

       {¶9} Motions for a new trial are governed by the framework provided in Crim.R.

33. Crim.R. 33(B) requires a motion for a new trial to be made within 14 days after a

verdict is rendered. If a motion for a new trial is made on grounds of newly discovered

evidence, the motion must be filed within 120 days after the day the verdict is rendered.

Id. A defendant may file a motion for a new trial outside the 120-day deadline only by

leave of court and only if “it is made to appear by clear and convincing proof that the

defendant was unavoidably prevented from the discovery of the evidence upon which he

must rely[.]” Id. Because the 120-day deadline has expired, Shabazz needed leave to

file his motion and establish, by clear and convincing evidence that he was unavoidably

prevented from discovering the new evidence. State v. Clement, 8th Dist. Cuyahoga

No. 97930, 2012-Ohio-3818, ¶ 4-5.


         “Assignment of Error V. The State violated the Fourteenth Amendment rights of
       2


Defendant-Appellant due to the other four assignments of error, that cause prejudicial plain errors at
trial.” [sic.]
       {¶10} In this case, Shabazz maintains in his motion that he was unavoidably

prevented from discovering this evidence because he and his counsel were denied

discovery of witness statements and their criminal histories. In support, he attached the

witness statements of Saunders, Carter, and Green, and the entries of criminal conviction

pertaining to Green.    He also attached a letter from one of his trial attorneys that

indicated that open discovery was not available at the time of his trial and that the reports

were not given to defense counsel.

       {¶11} Although Shabazz has now obtained possession of the witness statements

and criminal convictions, his blanket assertions that these documents show hearsay and

perjured testimony are insufficient to withstand his burden that these documents were not

available at the time of trial. In fact, his prior appeals demonstrate that this evidence was

available at trial, was reviewed during the appropriate times at trial, and used by counsel

at trial where defense counsel determined it was beneficial. See Shabazz II and III.

       {¶12} In Shabazz II, this court held that trial counsel was not ineffective for failing

to share discovery, i.e. witness statements, with Shabazz or use Green’s criminal history

for impeachment at trial. Id. at ¶ 8-9. Accordingly, this evidence was available a trial,

and Shabazz was not unavoidably prevented from discovering this evidence because it

was the underlying issue to his arguments in a prior appeal. Moreover, Green’s prior

convictions were public records, which could be discovered. Furthermore, in Shabazz II,

this court held that the state complied with the then-existing discovery rules; thus, there

was no withholding of evidence by the state. Id. at ¶ 8.
       {¶13} Accordingly, because the arguments Shabazz makes in this appeal were

previously considered and rejected in his prior appeals, the doctrine of res judicata

applies. Res judicata bars any claim for postconviction relief that the petitioner raised or

could have raised on direct appeal. State v. Lentz, 70 Ohio St.3d 527, 639 N.E.2d 784

(1994), syllabus. To overcome res judicata, a petitioner must present cogent, material

evidence found outside the record on appeal, which must have been unavailable to the

petitioner at the time of trial or his direct appeal. State v. Cole, 2 Ohio St.3d 112, 115,

443 N.E.2d 169 (1982); State v. Lewis, 8th Dist. Cuyahoga No. 73736, 1998 Ohio App.

LEXIS 5777 (Dec. 3, 1998) (noting that while the petitioner attached evidence dehors the

record in support of his claims for relief, he made no claim that the evidence was

unavailable to him at the time of his direct appeal). Morever, this court has further found

successive motions for a new trial are barred by res judicata. State v. Gray, 8th Dist.

Cuyahoga No. 92646, 2010-Ohio-11.

       {¶14} Notwithstanding the effect of res judicata, we further find that Shabazz

failed to satisfy his burden of proving he was unavoidably prevented from discovering the

purported new evidence, which would warrant the trial court to grant him leave to request

a new trial. Shabazz’s first, second, third, fourth, and fifth assignments of error are

overruled.

       {¶15} 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.




KATHLEEN ANN KEOUGH, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
SEAN C. GALLAGHER, J., CONCUR
