[Cite as State v. Cook, 2014-Ohio-4900.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                             :         APPEAL NO. C-140118
                                                     TRIAL NO. B-9001379
         Respondent-Appellee,              :
                                                          O P I N I O N.
   vs.                                     :

DERRICK COOK,                              :

         Petitioner-Appellant.             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: November 5, 2014




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Jr., Assistant Prosecuting Attorney, for Respondent-Appellee,

Office of the Ohio Public Defender, and Randall L. Porter, Assistant State Public
Defender, for Petitioner-Appellant.
                    OHIO FIRST DISTRICT COURT OF APPEALS



HILDEBRANDT, J.

        {¶1}   Petitioner-appellant Derrick Cook appeals from the Hamilton County

Common Pleas Court’s judgment dismissing his petition under R.C. 2953.21 et seq. for

relief from his 1990 conviction for aggravated murder. We affirm the court’s judgment.

        {¶2}   In 1990, a Hamilton County jury found Cook guilty of aggravated

murder, aggravated robbery, and kidnapping in connection with the death of clothing

store manager Frank Shorter. For aggravated murder, Cook was sentenced to death.

        {¶3}   Cook unsuccessfully challenged his convictions in direct appeals to this

court, the Ohio Supreme Court, and the United States Supreme Court, State v. Cook, 1st

Dist. Hamilton No. C-900676, 1992 Ohio App. LEXIS 1833 (Apr. 8, 1992), aff’d, 65

Ohio St.3d 516, 605 N.E.2d 70 (1992), certiorari denied, 510 U.S. 1040, 114 S.Ct. 681,

126 L.Ed.2d 649 (1994), and in a postconviction petition filed in 1994. State v. Cook,

1st Dist. Hamilton No. C-950090, 1995 Ohio App. LEXIS 5768 (Dec. 29, 1995), aff’d, 74

Ohio St.3d 524, 660 N.E.2d 449 (1996). His petition for a writ of habeas corpus

remains pending before the United States District Court for the Southern District of

Ohio.

        {¶4}   In 2012, Cook again petitioned the common pleas court for relief under

R.C. 2953.21 et seq. In this appeal from the dismissal of his 2012 postconviction

petition, he advances seven assignments of error.

                           The Jurisdictional Standard

        {¶5}   The postconviction petition from which this appeal derives was Cook’s

second petition and was filed well after the time prescribed by R.C. 2953.21(A)(2) had

expired. R.C. 2953.23 closely circumscribes a common pleas court’s jurisdiction to

entertain in a capital case a late or successive postconviction claim. The petitioner must




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                    OHIO FIRST DISTRICT COURT OF APPEALS



show either that he was unavoidably prevented from discovering the facts upon which

his postconviction claim depends, or that his claim is predicated upon a new or

retrospectively applicable right recognized by the United States Supreme Court since

the time for filing his claim had expired. R.C. 2953.23(A)(1)(a). And he must show “by

clear and convincing evidence that, but for constitutional error at trial, no reasonable

factfinder would have found [him] guilty of the offense of which [he] was convicted or *

* * eligible for the death sentence.” R.C. 2953.23(A)(1)(b).

               Constitutionality of the Jurisdictional Standard

       {¶6}    In his first assignment of error, Cook contends that the common pleas

court erred in failing to declare unconstitutional, both on its face and as applied to him,

R.C. 2953.23(A)(1)(b)’s “clear and convincing evidence” jurisdictional standard. He

argues that requiring this showing before a common pleas court may entertain a late or

successive postconviction claim violates rights guaranteed by the Supremacy Clause of

the United States Constitution, the doctrine of separation of powers embodied in the

federal and state constitutions, and the “due course of law” and “open courts”

provisions contained in Article I, Section 16, of the Ohio Constitution. We overrule this

assignment of error for the reasons set forth in our decision in State v. Bies, 1st Dist.

Hamilton No. C-020306, 2003-Ohio-442, ¶ 14-15 (following State v. McGuire, 12th

Dist. Preble No. CA2000-10-011, 2001 Ohio App. LEXIS 1826 (Apr. 23, 2001)). Accord

State v. Conway, 10th Dist. Franklin No. 12AP-412, 2013-Ohio-3741, ¶ 62-63; State v.

Johnson, 5th Dist. Guernsey No. 12 CA 19, 2013-Ohio-1398, ¶ 23-24; State v. Smith,

9th Dist. Lorain No. 04CA008546, 2005-Ohio-2571, ¶ 8; State v. Franklin, 2d Dist.

Montgomery No. 20716, 2005-Ohio-1361, ¶ 22-23; State v. Taylor, 8th Dist. Cuyahoga

No. 80271, 2002-Ohio-2742, ¶ 13; State v. Davie, 11th Dist. Trumbull No. 2000-T-




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0104, 2001 Ohio App. LEXIS 5842 (Dec. 21, 2001). See also State v. Byrd, 145 Ohio

App.3d 318, 762 N.E.2d 1043 (1st Dist.2001) (holding that the “clear and convincing”

standard does not violate due process).

       No Jurisdiction to Entertain Cook’s Postconviction Claims

       {¶7}   The balance of Cook’s assignments of error challenge the common pleas

court’s failure to grant the relief sought in the claims advanced in his postconviction

petition. These challenges are untenable, because the court had no jurisdiction to

entertain Cook’s postconviction claims.

       {¶8}   Grand-jury foreperson selection process. In his eighteenth

postconviction claim, Cook challenged as discriminatory the process employed by

Hamilton County for selecting grand-jury forepersons.        This claim was subject to

dismissal for lack of jurisdiction, because Cook did not, as he could not, demonstrate

that, but for the claimed infirmities in the foreperson selection process, no reasonable

factfinder would have found him guilty or eligible for the death sentence. See R.C.

2953.23(A)(1); State v. Garner, 1st Dist. Hamilton No. C-990659, 2000 Ohio App.

LEXIS 1823 (Apr. 28, 2000).

       {¶9}   Prosecutorial misconduct—undisclosed evidence and

false testimony. In claims one through fourteen, Cook contended that he had

been denied a fair trial by the state’s failure to disclose evidence contained in various

police notes and reports and witness statements and interviews that impeached trial

testimony identifying him as Frank Shorter’s killer. In his fifteenth and twentieth

claims, he asserted that he had been denied a fair trial when the state secured his

convictions through its knowing use of, and its failure to correct, testimony and




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arguments that the undisclosed evidence, along with other outside evidence, showed

were false.

       {¶10} The fair-trial guarantee of the Due Process Clause of the Fourteenth

Amendment to the United States Constitution imposes upon the state a duty to

disclose to a criminal accused evidence that is favorable and material to his guilt or

punishment. See Brady v. Maryland, 373 U.S. 87, 83 S.Ct. 1194, 10 L.Ed.2d 215

(1963). The right to a fair trial is also implicated when the state uses, or fails to

correct, evidence that it knows is false. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct.

1173, 3 L.Ed.2d 1217 (1959).

       {¶11} Both principles extend to evidence affecting a witness’s credibility.

Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972);

Napue at 269-270. And a claimed constitutional violation under either principle

requires proof of “materiality.” See Kyles v. Whitley, 514 U.S. 419, 434-436, 115 S.Ct.

1555, 131 L.Ed.2d 490 (1995) (holding that undisclosed evidence is “material” if,

“considered collectively,” the evidence “could reasonably be taken to put the whole

case in such a different light as to undermine confidence in the verdict”); United

States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (holding that

false testimony is “material” if “there is any reasonable likelihood that the false

testimony could have affected the judgment of the jury”).

       {¶12} But with respect to Cook’s postconviction Brady and Napue claims, the

common pleas court had no occasion to determine whether the undisclosed or allegedly

false evidence was “material.” The court had no jurisdiction to entertain those claims,

because Cook failed to show by clear and convincing evidence that, but for the alleged




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instances of prosecutorial misconduct, no reasonable factfinder would have found him

guilty or eligible for a sentence of death. See R.C. 2953.23(A)(1)(b).

       {¶13} Ineffective counsel. In his sixteenth postconviction claim, Cook

asserted that his trial counsel had been ineffective in failing to conduct a reasonable

investigation to identify the evidence offered in support of claims one through thirteen,

fifteen, and twenty. This challenge to trial counsel’s effectiveness with respect to Cook’s

Brady and Napue claims depends upon, and thus logically falls with, those claims. See

Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);

State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989) (holding that an ineffective-

counsel claim requires proof of an outcome-determinative deficiency in counsel’s

performance). Cook failed to show by clear and convincing evidence that, but for his

trial counsel’s alleged ineffectiveness with respect to the undisclosed evidence or the

allegedly false testimony, no reasonable factfinder would have found him guilty or

eligible for the death sentence. Therefore, the common pleas court had no jurisdiction

to entertain his sixteenth claim.

       {¶14} Actual innocence.            In his seventeenth postconviction claim, Cook

sought relief from his convictions on the ground that the outside evidence offered in

support of his other postconviction claims demonstrated that he was actually innocent

of the offenses of which he had been convicted. This claim was subject to dismissal,

because a claim of actual innocence based on evidence outside the trial record does not

provide substantive grounds for relief under R.C. 2953.21 et seq., when it does not

demonstrate a constitutional violation in the proceedings leading to the petitioner’s

conviction. See R.C. 2953.21(A)(1)(a); State v. Campbell, 1st Dist. Hamilton No. C-




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950746, 1996 Ohio App. LEXIS 5114 (Nov. 20, 1996). Accord Byrd, 145 Ohio App.3d at

331, 762 N.E.2d 1043.

       {¶15} Cumulative error. Finally, in his nineteenth claim, Cook sought relief

from his convictions on the ground that he had been denied a fair trial by the

accumulation of constitutional deprivations alleged in his other postconviction claims.

Under the doctrine of cumulative error, a conviction may be reversed if the cumulative

effect of errors deemed separately harmless is to deny the defendant a fair trial. State v.

DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus.

But Cook’s cumulative-error claim did not provide a ground for relief from his

convictions, because it depended upon proof of, and thus fell upon his failure to

demonstrate, multiple constitutional violations in the proceedings leading to his

convictions. See State v. Madrigal, 87 Ohio St.3d 378, 398, 721 N.E.2d 52 (2000);

State v. Were, 1st Dist. Hamilton No. C-080697, 2009-Ohio-4494, ¶ 88.

                                      Conclusion

       {¶16} The common pleas court properly dismissed Cook’s postconviction

petition, because he failed to satisfy R.C. 2953.21’s time requirements and R.C.

2953.23’s jurisdictional requirements. We, therefore, overrule the assignments of error

and affirm the judgment of the common pleas court.

                                                                      Judgment affirmed.

CUNNINGHAM, P.J., and HENDON, J., concur



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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