[Cite as State v. Esparza, 2019-Ohio-2661.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                     Court of Appeals No. L-17-1169

        Appellee                                  Trial Court No. CR0198306603

v.

Gregory Esparza                                   DECISION AND JUDGMENT

        Appellant                                 Decided: June 28, 2019

                                              *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Steven C. Newman, Federal Public Defender, Alan C. Rossman,
        Assistant Federal Public Defender, Lori B. Riga and Spiros P.
        Cocoves, for appellant.

                                              *****

        PIETRYKOWSKI, J.

        {¶ 1} This matter is before the court on appeal of the June 12, 2017 judgment of

the Lucas County Court of Common Pleas dismissing appellant’s motion to rule on
portions of his successive petition for postconviction relief. Because we conclude that

review was not barred by res judicata, we reverse the matter for further proceedings.

                          State and Federal Court Proceedings

       {¶ 2} This case has a long history in both state and federal courts and stems from

the 1983 shooting death of a convenience store clerk during the commission of a robbery.

Appellant, Gregory Esparza, was indicted for the crimes and, following a jury trial

convicting him of aggravated murder and aggravated robbery, was sentenced to death.

On direct appeal, we affirmed his conviction and sentence, State v. Esparza, 6th Dist.

Lucas No. L-84-225, 1986 Ohio App. LEXIS 7956 (Aug. 22, 1986), as did the Supreme

Court of Ohio in State v. Esparza, 39 Ohio St.3d 8, 529 N.E.2d 192 (1988). Upon

reopening of appellant’s appeal, we denied his claims of ineffective assistance of

appellate counsel. State v. Esparza, 6th Dist. Lucas No. L-84-225, 1995 Ohio App.

LEXIS 2058 (May 19, 1995).

       {¶ 3} In 1989, appellant filed a petition for postconviction relief raising 50 causes

of action. The trial court concluded, without conducting a hearing, that the claims were

either barred by res judicata or rebutted by the record. On appeal, we affirmed the

judgments. State v. Esparza, 6th Dist. Lucas No. L-90-235, 1992 Ohio App. LEXIS

2724 (May 29, 1992), cert. denied, State v. Esparza, 65 Ohio St.3d 1453, 602 N.E.2d 250

(1992). As noted by appellant, the dissent in this case observed:

              A capital offense in Ohio must be charged by indictment. The

       indictment must include one of the specifications listed in R.C. 2929.04(A).




2.
       The majority recognizes, and I agree, that a valid indictment is a

       jurisdictional prerequisite and that lack of subject matter jurisdiction may

       be raised at any time. Furthermore, I agree with the conclusion that the trial

       court lacks jurisdiction to impose a sentence of death if the indictment does

       not include one of the required specifications. However, I disagree with the

       majority’s opinion that the indictment in this case was sufficient to vest the

       trial court with authority to impose a sentence of death.

Id. at *26.

       {¶ 4} While the postconviction appeal was pending, appellant filed a public

records request with the city of Toledo requesting various police reports relating to the

investigation of other potential suspects as well as the reports documenting the

“evolution” of the state’s main witnesses’ description of the suspect. After ultimately

receiving the information on November 8, 1991, appellant filed a successive petition for

postconviction relief raising numerous claims. Relevant to this appeal, appellant asserted

the following:

               Eleventh ground for relief: Petitioner Esparza’s convictions and

       sentences are void or voidable because the State of Ohio failed to provide

       relevant discovery of potentially exculpatory evidence at the guilt phase of

       the trial.




3.
              Twelfth ground for relief: Petitioner Esparza’s convictions and

       sentences are void or voidable because the State of Ohio failed to disclose

       exculpatory information which undermined the credibility of several of its

       witnesses including key eyewitness, James Barailloux.

The state never responded to the petition and the court did not make any rulings relevant

thereto.

       {¶ 5} On September 5, 1996, appellant filed a federal habeas corpus petition

challenging the sufficiency of his conviction and the constitutionality of the imposition of

the death penalty. The court granted the petition, in part, ordering that appellant’s death

sentence be set aside due to the fact that the indictment failed to properly charge

appellant as the principal offender. Esparza v. Anderson, N.D.Ohio No. 3:96-CV-7434,

2000 U.S. Dist. LEXIS 23764 (Oct. 13, 2000). The court denied the claims relating to

the sufficiency of the underlying conviction. Relevant to this appeal, the court denied

appellant’s claim of prejudicial error based on his claims pursuant to Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that the state failed to provide him

with exculpatory evidence impeaching the testimony of the sole eyewitness and his sister-

in-law who testified that he confessed to the murder, evidence allegedly implicating other

suspects, and evidence that appellant was intoxicated at the time of the murder and

suffered from mental illness. Id. at *60-61.

       {¶ 6} On appeal, the Sixth Circuit affirmed the habeas award agreeing that the

state’s contravention of the statutory requirements in properly charging the aggravating,




4.
principal offender circumstance resulted in prejudicial error. Esparza v. Mitchell, 310

F.3d 414 (6th Cir.2002). The court highlighted its belief by noting that the state’s theory

at trial was that appellant acted alone. This theory was called into question by the

discovery of evidence that there may have been an additional participant in the crimes.

Id. at 422. However, the court distinguished the relevance of this fact when examining

appellant’s Brady violation claims. The court noted:

              After considering the evidence, we conclude that Esparza’s trial was

       not fatally flawed at the guilt phase of the case, although obviously the

       suppressed evidence should have been produced. The suppressed evidence

       tended to show that (1) one witness’s statement that the robber/shooter in

       the store resembled Esparza may have been wrong, and (2) that another

       individual may have been involved in the crime. Even after this, however,

       there remains other significant evidence against Esparza, in particular the

       testimony of two individuals to whom Esparza admitted shooting Melanie

       Gershultz. We note in particular that none of the suppressed evidence tends

       to show that Esparza was uninvolved in the robbery and shooting; it merely

       shows that he may not have been the principal offender and may not have

       acted alone. Thus, his request for a general writ based on a Brady error is

       denied.

Id. at 424.




5.
       {¶ 7} The Supreme Court of the United States granted certiorari to consider

whether the state’s failure to charge appellant as a principal offender was clearly contrary

to federal law. Mitchell v. Esparza, 540 U.S. 12, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003).

Reversing the circuit court’s issuance of the habeas corpus writ, the court concluded that

this court, in conducting a harmless-error review, did not unreasonably apply federal law.

Id. at 18. The court further noted that our conclusion was “hardly objectionably

unreasonable” based on the jury instructions, the fact that appellant was the only

individual charged in the indictment, and the fact that no evidence was presented that

anyone else was involved in the crime. Id. Appellant’s request for a rehearing was

denied. Mitchell v. Esparza, 540 U.S. 1142, 124 S.Ct. 1124, 157 L.Ed.2d 956 (2004).

The matter was remanded to the Sixth Circuit which, in turn, sent the matter to the district

court where it was stayed while appellant pursued state claims pursuant to Atkins v.

Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).1 After several years,

the Atkins claims were withdrawn and the matter was reinstated.

       {¶ 8} Thereafter, the parties briefed what they felt were the issues remaining

following the reversal. Relevant to this appeal, the district court concluded that

appellant’s Brady claims regarding the state’s alleged failure to provide exculpatory

evidence had actually been addressed and rejected by the district court’s 2000 decision



1
 Atkins held that the execution of intellectually impaired individuals constitutes cruel and
unusual punishment in violation of the Eighth Amendment to the United States
Constitution.




6.
which found no constitutional violations. So finding, the district court extensively quoted

the 2000 decision as follows:

              Esparza’s third ground for relief is that the prosecutor failed to

       provide him with exculpatory evidence, in violation of his constitutional

       rights. Specifically, Esparza alleges that the prosecutor failed to provide

       evidence that: (1) would impeach the trial testimony of James Barailloux

       and Lisa Esparza; (2) implicates other suspects in the Island Carryout

       murder; (3) indicates Esparza was intoxicated during the time the murder

       was committed and that he suffered from a mental disorder.

              Although this claim was not raised on direct appeal, like Esparza’s

       second claim for relief, it is not procedurally defaulted as it also is premised

       on information that was not made available to Esparza until after the

       conclusion of his direct appeals, pursuant to his [public records request]

       litigation based on State ex rel. Clark v. City of Toledo, 54 Ohio St. 3d 55,

       560 N.E.2d 1313 (Ohio 1990). Accordingly, the Court will address this

       claim on the merits, without the benefit of a state court decision.

              To establish a claim under Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

       1194, 10 L. Ed. 2d 215 (1963), “the petitioner has the burden of

       establishing that the prosecutor suppressed evidence; that such evidence

       was favorable to the defense; and that the suppressed evidence was

       material.” See Carter v. Bell, 218 F.3d 581, 2000 WL 895827 at * 19 (6th




7.
      Cir. 2000) (citing Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562,

      33 L. Ed. 2d 706 (1972)). “The inquiry is objective, independent of the

      intent of the prosecutors.” Id. (citing Brady, 373 U.S. at 87).

             “[E]vidence is material only if there is a reasonable probability that,

      had the evidence been disclosed to the defense, the result of the proceeding

      would have been different. A ‘reasonable probability’ is a probability

      sufficient to undermine confidence in the outcome.” United States v.

      Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). * * *

             ***

             It is here that Esparza’s first two sub-claims must fail. Were the

      Court to extricate James Barailloux and Lisa Esparza’s testimony from the

      totality of the evidence offered at trial, there nonetheless would be ample

      evidence to provide the Court with confidence in the trial’s outcome.

      Richardson’s testimony, for example, provided the jury with Esparza’s

      confession of the killing. Furthermore, a jury reasonably could have found

      that, although other suspects were investigated for this homicide, Esparza

      was the actual assailant.”

Esparza v. Anderson, N.D.Ohio No. 3:96 CV 7434, 2013 U.S. Dist. LEXIS 38802

at *62-64 (Feb. 27, 2013), quoting Esparza v. Anderson, N.D.Ohio No. 3:96-CV-

7434, 2000 U.S. Dist. LEXIS 23764 at *60-63.




8.
                            Current State Court Proceedings

       {¶ 9} On March 11, 2016, appellant filed a motion in the trial court requesting that

it rule on the eleventh and twelfth grounds for relief in his November 8, 1991 successive

petition for postconviction relief. Appellant argued that no court had ever reviewed his

Brady claims in relation to the principal offender, death specification.

       {¶ 10} The state filed a motion to dismiss appellant’s motion. The state first

argued that the request was barred by res judicata based on the fact that the Brady claims

were fully considered and rejected in the federal district court habeas corpus case. The

state further contended that the claims were waived by appellant and counsel

“abandoning” the claims for nearly 25 years.

       {¶ 11} On June 12, 2017, the court granted the state’s motion to dismiss based on

the doctrine of res judicata. The court found that appellant’s Brady claims were

previously addressed and rejected in federal court. This appeal followed.

       {¶ 12} Appellant now raises the following assignment of error for our review:

              The trial court erred in its application of res judicata when it ruled

       the federal courts held the Brady claim to be meritless in the context of a

       capital aggravated murder case.

       {¶ 13} In his sole assignment of error, appellant asserts that the trial court

improperly applied the doctrine of res judicata to bar review of his Brady claims as

applied in the capital murder case. Specifically, appellant contends that prior federal

court review was limited only to the effect of the withheld evidence as applied to the




9.
aggravated murder case following the initial granting of appellant’s habeas corpus

petition.

       {¶ 14} It is well-established that res judicata is a proper ground upon which to

dismiss, without a hearing, a R.C. 2953.21 petition for postconviction relief. State v.

Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d 233 (1996); State v. Perry, 10 Ohio St.2d 175,

226 N.E.2d 104 (1967). A basic tenet of the doctrine is that “[a] valid, final judgment

rendered upon the merits bars all subsequent actions based upon any claim arising out of

the transaction or occurrence that was the subject matter of the previous action.” Grava

v. Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995), syllabus. The preclusive

effect of the doctrine applies in cases involving federal habeas corpus proceedings and

subsequent state court petitions for postconviction relief. See State v. Apanovitch, 107

Ohio App.3d 82, 667 N.E.2d 1041 (8th Dist.1995).

       {¶ 15} Dismissing appellant’s motion as barred by res judicata, the trial court

concluded that the federal court had already addressed and rejected appellant’s Brady

claims in the 2000, 2012, and 2013 district court decisions and the circuit court’s 2002

decision.

       {¶ 16} As set forth above, appellant was indicted on and convicted of aggravated

murder, with a death specification, and aggravated robbery. The death specification did

not provide necessary principal offender language. The 2000 district court decision

granted habeas relief as to the constitutionality of appellant’s death sentence. Esparza v.

Anderson, N.D.Ohio No. 3:96-CV-7434, 2000 U.S. Dist. LEXIS 23764. Addressing the




10.
Brady claims, the court noted that a jury could have reasonably found, though other

suspects were investigated, that appellant was the actual assailant. Id. at *63.

         {¶ 17} On appeal to the Sixth Circuit, reviewing the facts of the case the court

noted:

                After Esparza’s trial, his appeals and his state post-conviction

         proceedings, a substantial volume of exculpatory evidence was revealed

         that was not turned over by prosecutors at trial. This evidence tended to

         prove that Joe Jasso was a participant in the crime and that Esparza did not

         act alone.

                No information concerning Jasso was provided to the defense before

         trial. In information discovered as a result of a discovery request enforced

         by the district court below, Esparza learned that two individuals, Charles

         Hall and Stephen Billings, both separately reported to the Toledo Police

         Department that they had seen a Caucasian male and a Hispanic male in the

         Island Variety Carryout the night of the homicide. Hall and Billings both

         reported that the Caucasian man was driving a Monte Carlo. Hall reported

         that he saw the Monte Carlo circle the Island Variety Carryout twelve

         times. Information implicating Jasso was also discovered as a result of

         district court-ordered release of tips collected by Crimestoppers, a privately

         funded program that works in conjunction with local law enforcement to

         gather information regarding unsolved crimes. Two days after the




11.
       homicide, an unidentified caller stated that he had overheard Joe Jasso

       talking about the murder. The caller hung up before any additional

       information was obtained.

Esparza v. Mitchell, 310 F.3d. at 418.

       {¶ 18} Affirming the granting of the habeas writ, but again rejecting appellant’s

Brady claims, the circuit court stated: “We note in particular that none of the suppressed

evidence tends to show that Esparza was uninvolved in the robbery and shooting; it

merely shows that he may not have been the principal offender and may not have acted

alone.” Id. at 424. This finding was made in light of the fact that the district court had

already granted the writ as to the death sentence and, thus, any error in the suppressed

evidence as to the identity of the principal offender would be harmless.

       {¶ 19} On appeal to the Supreme Court of the United States, the court addressed

only the habeas relief as to the principal offender death specification. Mitchell v.

Esparza, 540 U.S. 12. The court stated the following in consecutive footnotes:

              The Court of Appeals noted evidence brought to light for the first

       time in the habeas proceeding in the District Court that suggested there

       might have been another participant in the crime, Joe Jasso. The jury,

       however, was not presented with this evidence at trial, and thus it has no

       bearing on the correctness of the Ohio Court of Appeals’ decision that the

       State need not charge a defendant as a principal offender if the failure to so

       charge is harmless error.




12.
               Our decision, like the Court of Appeals’ is limited to the issue

       presented here. We express no view whether habeas relief would be

       available to respondent on other grounds. (Emphasis added.)

Id. at 18-19, fn. 3-4.

       {¶ 20} Following the Supreme Court’s decision, appellant’s federal habeas

petition was dismissed with the district court noting that it would not reconsider the

Brady claims on remand because the Sixth Circuit expressly considered and rejected the

claims in its 2002 decision. Esparza v. Anderson, N.D.Ohio No. 3:96 CV 7434, 2012

U.S. Dist. LEXIS 97051, at *33.

       {¶ 21} Appellant’s request for reconsideration was denied by the district court

which first concluded that reconsideration was not proper because appellant failed to

timely raise the issue in light of the capital (opposed to aggravated) murder charge.

Esparza v. Anderson, N.D. Ohio 3:96 CV 7434, 2013 U.S. Dist. LEXIS 38802, at *57.

The district court further noted that the issue was in fact addressed and rejected in the

2000 decision. Id. at *62-64. The court stressed that it was not apparent that the court in

2000 had addressed the Brady material in light of an aggravated murder charge as

opposed to a capital murder charge. Id. at *64.

       {¶ 22} Reviewing the case as it currently sits before us, we cannot say that the

merits of appellant’s Brady claims as they relate to the capital murder, death specification

have been addressed by any court. Following the district court’s 2000 decision, in 2002,

the Sixth Circuit noted that “a substantial amount of exculpatory evidence” was produced




13.
following appellant’s trial that “tended to prove” that appellant did not act alone and that

the principal offender aggravator had been “called into question.” Thus, the trial court’s

reliance on the 2013 district court decision quoting the prior 2000 district court decision

in denying appellant’s motion for reconsideration was in error. Appellant’s assignment

of error is well-taken.

       {¶ 23} On consideration whereof, we find that substantial justice was not done the

party complaining and the judgment of the Lucas County Court of Common Pleas is

reversed and the matter is remanded for further proceedings. Pursuant to App.R. 24,

appellee is ordered to pay the costs of this appeal.


                                                                         Judgment reversed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Arlene Singer, J.
                                                _______________________________
Christine E. Mayle, P.J.                                    JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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