[Cite as State v. Harrison, 2018-Ohio-1396.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105909




                                      STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                 LORENZO HARRISON
                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-08-513945-A

        BEFORE: Stewart, J., E.A. Gallagher, A.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: April 12, 2018
FOR APPELLANT

Lorenzo Harrison, pro se
Inmate No. 563687
Chillicothe Correctional Institution
P.O. Box 5500
Chillicothe, OH 45601


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

Amy Venesile
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

      {¶1} Defendant-appellant Lorenzo Harrison appeals from the summary denial of

his petition for postconviction relief and his ancillary motions for expert assistance,

appointment of counsel, and demand for discovery.

      {¶2} In 2008, Harrison was found guilty of three counts of rape and three counts of

kidnapping. He was sentenced to a prison term of life without parole. We affirmed his

convictions on direct appeal, subject to a limited remand so that the trial court could

inquire into a request Harrison made for a new trial based on his attempt to dismiss trial

counsel and obtain new counsel. State v. Harrison, 8th Dist. Cuyahoga No. 93132,

2010-Ohio-2778, ¶ 46. On remand, the trial court found no merit to his claim for

substitution of counsel. We affirmed that decision on further appeal. See State v.

Harrison, 8th Dist. Cuyahoga No. 95666, 2011-Ohio-3258.
       {¶3} Harrison then filed two unsuccessful motions to reopen his appeal: one from

his direct conviction (State v. Harrison, 8th Dist. Cuyahoga No. 93132, 2011-Ohio-699,

motion No. 437568), and one from his appeal following limited remand (State v.

Harrison, 8th Dist. Cuyahoga No. 95666, 2011-Ohio-5823, motion No. 446804). In

addition, Harrison unsuccessfully sought federal habeas review. In re Harrison, 6th

Circ. No. 16-3213, 2016 U.S. App. LEXIS 23998 (Dec. 9, 2016), adopted from Harrison

v. Ohio Dept. of Rehab. & Corr., N.D.Ohio No. 1:12 CV 202, 2015 U.S. Dist. LEXIS

16048 (Feb. 10, 2015). The United States Court of Appeals for the Sixth Circuit denied

a certificate of appealability from the habeas action. Harrison v. Richard, 6th Circ. No.

17-3246, 2017 U.S. App. LEXIS 23219 (Aug. 17, 2017).

       {¶4} Between July 2015 and June 2016, Harrison filed the four motions at issue in

this appeal. With respect to the petition to vacate or set aside the judgment of conviction

or sentence, he offered two grounds: first, that the police and prosecutor engaged in

intentional deception of the court and jury by withholding favorable evidence and

offering false testimony; second, that he was denied the right to counsel and was not

given effective assistance of counsel before trial.
       {¶5} Harrison’s petition to vacate his conviction had to conform to R.C. 2953.21.

That section states that a petition for postconviction relief claiming a violation of a

constitutional right must be filed no later than 180 days after the expiration of the time for

filing the appeal. See R.C. 2953.21(A)(2). The time requirement for postconviction

relief, pursuant to R.C. 2953.21(A), is jurisdictional.       State v. Williams, 8th Dist.

Cuyahoga No. 100639, 2014-Ohio-3589, ¶ 7.

       {¶6} Harrison’s petition for postconviction relief is facially untimely.

Nevertheless, an exception to the time requirement exists if it can be demonstrated that

(1) the petitioner was unavoidably prevented from discovering the facts relied on in the

claim for relief or that 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; and (2) there is clear and convincing evidence that, but

for the constitutional error at trial, no reasonable trier of fact would have found the

petitioner guilty of the offense. See R.C. 2953.23(A)(1). “The phrase ‘unavoidably

prevented’ from discovery of facts warranting postconviction relief means that a

defendant was unaware of those facts and was unable to learn of them through reasonable

diligence.” State v. Short, 8th Dist. Cuyahoga No. 82246, 2003-Ohio-3538, ¶ 9.
      {¶7} Harrison gave no basis for the court to find that he had been unavoidably

prevented from raising the first claim in a timely manner. The first ground for relief

claims that the police withheld exculpatory evidence in violation of Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The allegedly exculpatory evidence

was medical records in which the victim supposedly gave a different account of how

many times she had been raped and when those rapes occurred. Harrison maintains that

these records were not turned over to the defense until just before the state concluded its

case-in-chief, when the only remaining witness for the state was a police detective.

Harrison claimed in his petition that the medical records “are favorable to my defense,

showing no evidence of sexual conduct.”
       {¶8} Harrison admitted that the medical records were turned over in time for trial

— “the medical records were withheld and not turned over to the defense until the last

day of testimony after the witnesses, including the accuser, had already testified and left

the courtroom. Thus, permitting the defense to question only the detective about the

findings in the medical report.” Petition to vacate or set aside judgment of conviction or

sentence, at 3. Even though he complains that he did not personally see the medical

records before trial, there is no question that the records were provided to the defense and

were the basis of questioning at trial. Harrison was thus aware that the medical records

existed at the time of trial, so he has failed to show that he was unavoidably prevented

from raising the issue of the medical records at an earlier time. In fact, Harrison raised

the issue of the medical records as part of a Brady claim in federal court. The Sixth

Circuit rejected that claim, finding that Harrison “could have presented his Brady * * *

claims in his 2011 habeas petition.” Harrison, 2017 U.S. App. LEXIS 23219, at 6.

That finding reinforces our conclusion that Harrison could have raised his Brady claims

well before he brought them in his petition for postconviction relief.

       {¶9} Harrison also claimed that the state withheld and suppressed records

compiled by a social worker in the state of Michigan (the victim and her mother moved to

Michigan after the victim made her accusations). He maintains that the state subpoenaed

these records prior to trial, but did not disclose their existence. Harrison admits, by way

of an affidavit from the assistant prosecuting attorney who tried the case, that the state did

not receive the records because Michigan law barred their disclosure.
      {¶10} Harrison argues that the records could not be turned over to the state by way

of subpoena, but could have been produced by way of a signed release from the victim’s

mother. Regardless of whether this is true, the fact remains that the state did not receive

these records, nor has Harrison asserted that he has seen the records. To establish a

Brady violation, the defendant must show both the suppression of evidence and that the

evidence is material to guilt. Brady, 373 U.S. at 87, 83 S.Ct. 1194, 10 L.Ed.2d 215.

Without knowing what the social worker records contain, and without giving a plausible

basis for believing that they might contain materially exculpatory evidence, Harrison

cannot establish a Brady violation. United States v. López-Díaz, 794 F.3d 106, 116 (1st

Cir.2015).
       {¶11} The second claim for relief asserted that Harrison had been denied his right

to counsel because he was forced to proceed to trial with an “unwanted public defender”

whom he had fired. Not only was this claim extensively addressed on direct appeal, see

Harrison, 8th Dist. Cuyahoga No. 93132, 2010-Ohio-2778, at ¶ 34-42, we remanded for

“the limited purpose of inquiring into Harrison’s allegations, with instructions to re-enter

the judgment of conviction if the allegations are unfounded.” Id. at ¶ 42. The trial court

found no violation of Harrison’s right to counsel. We affirmed, finding that “the trial

court properly conducted a hearing and allowed Harrison to place on the record his

reasons for the request for new counsel.” Harrison, 8th Dist. Cuyahoga No. 95666,

2011-Ohio-3258, at ¶ 17. We went on to conclude that “the trial court made sufficient

inquiry into the allegation to provide this court with meaningful review” and that the trial

court did not err by finding that “Harrison’s reasons supporting his request for new

counsel were insufficient.” Id. With this claim having been raised and addressed on

direct appeal from remand, it is res judicata. State v. Perry, 10 Ohio St.2d 175, 177, 226

N.E.2d 104 (1967) (“a final judgment of conviction bars a convicted defendant who was

represented by counsel from raising and litigating in any proceeding except an appeal

from that judgment, any defense or any claimed lack of due process 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”). Res judicata similarly bars Harrison’s

assertions that trial counsel failed to preserve his speedy trial rights. State v. Grimes, 2d

Dist. Montgomery No. 26636, 2017-Ohio-25, ¶ 11.
       {¶12} Harrison next argues that trial counsel failed to investigate the facts of the

case by interviewing witnesses, failed to obtain transcripts of 911 calls, failed to obtain

full discovery of evidence, failed to research applicable law, and failed to advise Harrison

of his sentencing exposure.

       {¶13} With respect to his claim that trial counsel failed to interview witnesses,

Harrison offered affidavits from family members who resided in the house where the

rapes occurred.      The affiants made identical assertions that no one “with the

responsibility and duty to investigate the facts of the allegations” had contacted them

about the allegations made against Harrison.

       {¶14} The court would have correctly concluded that Harrison failed to show why

he was unavoidably prevented from obtaining this evidence. The affiants state that they

lived with Harrison at the time of the offense, so these people were plainly known to him.

 The affidavits are all dated June 2014, yet Harrison did not file his petition for

postconviction relief until June 2016. He could have raised these claims as a basis for

postconviction relief far sooner.

       {¶15} In fact, Harrison raised this same issue of ineffective assistance of counsel

in the hearing on his motion to remove counsel that was conducted on remand from his

direct appeal.    On appeal from that hearing, we noted that one basis for removal of trial

counsel was that Harrison claimed that he had alibi witnesses. We noted in 2011 that

       defense counsel provided a reasonable explanation for the lack of an alibi
       witness: given the length of time over which these allegations occurred and
       the number of residences at which they were to have occurred, defense
       counsel found it impossible to pinpoint any alibi witnesses.
 Harrison, 8th Dist. Cuyahoga No. 95666, 2011-Ohio-3258, at ¶ 18. These same facts

caused a federal magistrate judge to deny habeas relief on a claim of ineffective

assistance of counsel, finding that “counsel’s failure to attempt to locate an alibi witness

cannot be said to be objectively unreasonable under the circumstances of Harrison’s case

given the time-frame and the lack of specific dates of the allegations.” Harrison v. Ohio

Dept. of Rehab. & Correction, N.D.Ohio No. 1:12CV202, 2014 U.S. Dist. LEXIS

181869, 38 (Oct. 30, 2014), adopted by Harrison, N.D.Ohio No. 1:12 CV 202, 2015 U.S.

Dist. LEXIS 16048, at 10. So not only were these claims untimely, but having been

decided by other courts, they are res judicata. See State v. Apanovitch, 107 Ohio App.3d

82, 88, 667 N.E.2d 1041 (8th Dist.1995) (claims raised in postconviction proceedings that

were previously litigated in federal court were res judicata).

       {¶16} With respect to the court’s refusal to grant Harrison’s motion for

appointment of counsel, expert assistance, and discovery, the law is clear that these

requests are not available in postconviction proceedings. See State v. Mack, 8th Dist.

Cuyahoga No. 101261, 2018-Ohio-301, ¶ 27 (“The right to counsel in civil, collateral

attacks on valid criminal judgments is not constitutionally required.”); State v. Simpson,

2016-Ohio-1266, 61 N.E.3d 905, ¶ 16 (2d Dist.) (“no right, statutory or constitutional, to

the appointment of experts to assist in [ ] post-conviction relief petition”); State ex rel.

Love v. Cuyahoga Cty. Prosecutor’s Office, 87 Ohio St.3d 158, 159, 1999-Ohio-314, 718

N.E.2d 426 (“no requirement of civil discovery in postconviction proceedings”).
       {¶17} We likewise reject Harrison’s complaint that the court erred by denying him

a hearing on his petition for postconviction relief.

       {¶18} R.C. 2953.21(F) states that “[u]nless the petition and the files and records of

the case show the petitioner is not entitled to relief, the court shall proceed to a prompt

hearing on the issues even if a direct appeal of the case is pending.”           The word

“hearing,” however, does not mean an “evidentiary” hearing. State v. Jones, 8th Dist.

Cuyahoga No. 105405, 2017-Ohio-7326, ¶ 5.

       Where the petition, the supporting affidavits, the documentary evidence, the
       files, and the records do not demonstrate that petitioner set forth sufficient
       operative facts to establish substantive grounds for relief, the court may
       dismiss a petition for postconviction relief without a hearing.

State v. Hostacky, 8th Dist. Cuyahoga No. 103014, 2016-Ohio-397, ¶ 4, citing State v.

Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, 714 N.E.2d 905, paragraph two of the

syllabus, and State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550, ¶ 22.

       {¶19} Harrison’s petition for postconviction relief was not only facially untimely,

it failed to set forth any basis to explain why he had been unavoidably prevented from

filing his petition at an earlier time. The court did not err by refusing to conduct an

evidentiary hearing on the petition.

       {¶20} Judgment affirmed.

       It is ordered that appellee recover of 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.



______________________________________________
MELODY J. STEWART, JUDGE

EILEEN A. GALLAGHER, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
