[Cite as State v. Jackson, 2020-Ohio-4015.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

       PLAINTIFF-APPELLEE,                                CASE NO. 1-19-63

       v.

CLEVELAND R. JACKSON,                                     OPINION

       DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR 2002 0011

                                      Judgment Affirmed

                            Date of Decision: August 10, 2020




APPEARANCES:

        Dale A. Baich, Kelle A. Andrews, and Charlotte G. Merrill
                 for Appellant

        Jana E. Emerick for Appellee
Case No. 1-19-63



PRESTON, J.

       {¶1} Defendant-appellant, Cleveland R. Jackson (“Jackson”), appeals the

September 26, 2019 judgment of the Allen County Court of Common Pleas rejecting

his petition for post-conviction relief. For the reasons that follow, we affirm.

       {¶2} This matter originated with Jackson’s 2002 conviction and death

sentence for the murder of Leneshia R. Williams (“Williams”). On January 3, 2002,

Jackson and his half-brother, Jeronique Cunningham, robbed a group of eight people

at gunpoint and then fired their weapons into the group. Three-year-old Jayla Grant

(“Grant”) and 17-year-old Williams were shot and died as a result of their injuries.

       {¶3} On January 10, 2002, the Allen County Grand Jury indicted Jackson on

nine counts: Counts One and Two of aggravated murder in violation of R.C.

2903.01(B); Count Three of aggravated robbery in violation of R.C. 2911.01(A)(1);

and Counts Four through Nine of attempted aggravated murder in violation of R.C.

2923.02 and R.C. 2903.01(B). (Doc. No. 1). Counts One and Two both contained

death-penalty specifications under R.C. 2929.04(A)(5) and R.C. 2929.04(A)(7).

(Id.). Counts One through Nine also contained firearm specifications under R.C.

2941.145(A). (Id.).

       {¶4} A jury trial commenced on July 16, 2002. (Doc. No. 313). On July 25,

2002, the jury found Jackson guilty on all counts. (Id.). Additionally, the jury found

that the State proved all of the specifications, including the death-penalty

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specifications, beyond a reasonable doubt. (Id.). On July 26, 2002, the trial court

filed its judgment entry of conviction. (Id.).

       {¶5} A mitigation hearing was held on July 29, 2002. (Doc. No. 344). For

the purposes of sentencing, the trial court instructed the jury to consider only

whether each aggravated murder was part of a course of conduct involving the

purposeful killing of or attempt to kill two or more persons under R.C.

2929.04(A)(5), thereby removing the aggravating factor under R.C. 2929.04(A)(7)

from the jury’s consideration. (Id.). On July 30, 2002, the trial court returned its

recommendation that Jackson be sentenced to death for Counts One and Two. (Id.).

       {¶6} At the sentencing hearing on August 5, 2002, the trial court accepted

the jury’s recommendation and sentenced Jackson to death for the aggravated

murders of Grant and Williams, Counts One and Two, respectively. (Doc. Nos.

344, 345). The trial court also imposed prison terms with respect to Counts Three

through Nine and the related firearm specification in Count Three. (Doc. No. 345).

That same day, the trial court filed its sentencing opinion and its judgment entry of

sentence. (Doc. Nos. 344, 345).

       {¶7} Jackson perfected a direct appeal as of right to the Supreme Court of

Ohio. In State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, the Supreme Court




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of Ohio affirmed Jackson’s convictions and sentences on all non-capital offenses.1

Id. at ¶ 23. With respect to the capital offenses, the Supreme Court of Ohio affirmed

Jackson’s convictions for the aggravated murders of Grant and Williams and

affirmed the death sentence for the aggravated murder of Williams. Id. at ¶ 23, 25.

However, the court found that the trial court abused its discretion in denying

Jackson’s request to inform prospective jurors that one of the murder victims was a

young child. Id. at ¶ 24. Accordingly, the Supreme Court of Ohio vacated Jackson’s

death sentence for the murder of Grant and remanded the cause to the trial court for

the purpose of resentencing on that count only. Id. Accordingly, on January 8,

2007, the trial court held a resentencing hearing and sentenced Jackson to life

imprisonment without parole with respect to the murder of Grant. (Doc. No. 443).

Jackson filed an application to reopen his direct appeal, which the Supreme Court

of Ohio denied.           State v. Jackson, 110 Ohio St.3d 1435, 2006-Ohio-3862.

Subsequently, the Supreme Court of the United States denied Jackson’s petition for

writ of certiorari. Jackson v. Ohio, 548 U.S. 912, 126 S.Ct. 2940 (2006).

        {¶8} On August 13, 2003, while his direct appeal was pending, Jackson filed

a petition for postconviction relief, which the trial court denied. (Doc. Nos. 410,

426). This court affirmed the trial court’s decision on appeal. State v. Jackson, 3d



1
  In Jackson’s direct appeal from his convictions and sentence, the Supreme Court of Ohio recited much of
the factual background of this case, and we will not duplicate those efforts here. See State v. Jackson, 107
Ohio St.3d 53, 2005-Ohio-5981.

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Dist. Allen No. 1-04-31, 2004-Ohio-5350, ¶ 25. The Supreme Court of Ohio

declined further review. State v. Jackson, 108 Ohio St.3d 1476, 2006-Ohio-665.

       {¶9} On June 26, 2007, Jackson filed a petition for a writ of habeas corpus

with the United States District Court for the Northern District of Ohio raising twenty

claims. Jackson v. Houk, N.D.Ohio No. 3:07CV0400, 2008 WL 1946790 (May 1,

2008). The district court denied Jackson’s claims and declined to grant a certificate

of appealability on any of the claims. Id. at *82. The United States Court of Appeals

for the Sixth Circuit affirmed the district court’s decision. Jackson v. Houk, 687

F.3d 723 (6th Cir.2012). On February 19, 2013, the Supreme Court of the United

States declined Jackson’s petition for writ of certiorari. Jackson v. Houk, 568 U.S.

1164, 133 S.Ct. 1243.

       {¶10} On September 4, 2019, Jackson filed a second petition for

postconviction relief in the trial court.      (Doc. No. 456).   In his petition for

postconviction relief, Jackson argued that his death sentence is void or voidable

because he is intellectually disabled and ineligible for execution. (Id.). In his

petition for postconviction relief, Jackson acknowledged that he was filing outside

the timeframe prescribed by R.C. 2953.21(A) and that it was his second petition for

postconviction relief. (Id.). Nevertheless, Jackson argued that his petition met the

exceptions outlined in R.C. 2953.23, and he argued that the trial court should

therefore consider the merits of his claim. (Id.). On September 25, 2019, the State


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filed its response and motion to dismiss Jackson’s petition for postconviction relief.

(Doc. No. 457). On September 26, 2019, the trial court filed its judgment entry

denying Jackson’s petition for postconviction relief without holding an evidentiary

hearing. (Doc. No. 458).

       {¶11} On October 11, 2019, Jackson filed his notice of appeal. (Doc. No.

461). He raises one assignment of error for our review.

                               Assignment of Error

       The trial court improperly failed to grant jurisdiction under R.C.
       2953.23 and review Appellant Jackson’s claims and evidence
       proving that he is intellectually disabled and ineligible for
       execution.    (Dkt. 458.)     It improperly found that R.C.
       2953.23(A)(1) does not apply, improperly applied res judicata,
       and failed to afford Jackson due process in the consideration of
       his claims and evidence. This assignment of error relates to
       Issues for Review 1-4.

       {¶12} In his assignment of error, Jackson argues that the trial court erred in

denying his petition for postconviction relief without a hearing on the grounds that

it was both time barred and barred by res judicata.

       {¶13} “R.C. 2953.21 governs petitions for post-conviction relief.” State v.

Wine, 3d Dist. Auglaize No. 2-15-07, 2015-Ohio-4726, ¶ 10, citing State v. Kinstle,

3d Dist. Allen No. 1-12-32, 2013-Ohio-850, ¶ 10. The statute sets forth who may

petition for postconviction relief:

       Any person who has been convicted of a criminal offense * * * and

       who claims that there was such a denial or infringement of the

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       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.

R.C. 2953.21(A)(1)(a). The statute sets forth the time requirements for filing a

petition for postconviction relief and provides, in relevant part,

       a petition under division (A)(1) of this section shall be filed no later

       than three hundred sixty-five days after the date on which the trial

       transcript is filed in the court of appeals in the direct appeal of the

       judgment of conviction or adjudication or, if the direct appeal involves

       a sentence of death, the date on which the trial transcript is filed in the

       supreme court. If no appeal is taken, except as otherwise provided in

       section 2953.23 of the Revised Code, the petition shall be filed no

       later than three hundred sixty-five days after the expiration of the time

       for filing the appeal.

R.C. 2953.21(A)(2). “‘A trial court lacks jurisdiction to entertain an untimely or

successive petition for postconviction relief unless the petitioner establishes that one


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of the exceptions in R.C. 2953.23(A) applies.’” State v. Cunningham, 3d Dist. Allen

No. 1-15-61, 2016-Ohio-3106, ¶ 13, quoting State v. Chavis, 10th Dist. Franklin

No. 15AP-557, 2015-Ohio-5549, ¶ 14, citing State v. Campbell, 10th Dist. Franklin

No. 12AP-109, 2012-Ohio-5195, ¶ 9. “Therefore, if the petition has been untimely

filed, the trial court cannot consider the substantive merits of the petition and must

summarily dismiss it without addressing the merits of the petition.” State v.

Unsworth, 6th Dist. Lucas No. L-14-1238, 2015-Ohio-3197, ¶ 16, citing State v.

Flower, 7th Dist. Mahoning No. 14 MA 148, 2015-Ohio-2335, ¶ 12 and State v.

Rodriguez, 6th Dist. Wood No. WD-14-075, 2015-Ohio-562, ¶ 6.

       {¶14} However, as indicated, an exception to the jurisdictional time limit is

contained in R.C. 2953.23(A), which states as follows:

       (A) Whether a hearing is or is not held on a petition filed pursuant to

       section 2953.21 of the Revised Code, a court may not entertain a

       petition filed after the expiration of the period prescribed in division

       (A) of that section or a second petition or successive petitions for

       similar relief on behalf of a petitioner unless division (A)(1) or (2) of

       this section applies:

       (1) Both of the following apply:

       (a) Either the petitioner shows that the petitioner was unavoidably

       prevented from discovery of the facts upon which the petitioner must


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       rely to present the claim for relief, or, subsequent to the period

       prescribed in division (A)(2) of section 2953.21 of the Revised Code

       or to the filing of an earlier petition, 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.

       (b) The petitioner shows by clear and convincing evidence that, but

       for constitutional error at trial, no reasonable factfinder would have

       found the petitioner guilty of the offense of which the petitioner was

       convicted or, if the claim challenges a sentence of death that, but for

       constitutional error at the sentencing hearing, no reasonable factfinder

       would have found the petitioner eligible for the death sentence.

R.C. 2953.23(A).

       {¶15} Once a court has determined that a petition is untimely and no

exception applies, no further inquiry into the merits of the case is necessary. See

State v. Morgan, 3d Dist. Shelby No. 17-04-11, 2005-Ohio-427, ¶ 6, citing State v.

Beaver, 131 Ohio App.3d 458 (11th Dist.1998). Trial courts should dismiss

untimely postconviction petitions for lack of jurisdiction; nevertheless, a trial court

does not commit reversible error by denying an untimely postconviction petition.

State v. Hatfield, 10th Dist. Franklin No. 07AP-784, 2008-Ohio-1377, ¶ 8, citing


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State v. Hamilton, 10th Dist. Franklin No. 03AP-852, 2004-Ohio-2573, ¶ 9 and State

v. Hensley, 9th Dist. Lorain No. 03CA008293, 2003-Ohio-6457, ¶ 7. The trial court

determined that Jackson failed to establish an exception to the statutory time limit,

and we review that decision under an abuse of discretion standard. State v. Allen,

6th Dist. Lucas No. L-17-1085, 2017-Ohio-7976, ¶ 10, citing Unsworth, 2015-Ohio-

3197, at ¶ 16 and Rodriguez, 2015-Ohio-562, at ¶ 7.

       {¶16} Jackson timely filed his initial petition for postconviction relief on

August 13, 2003. Thus, because this is Jackson’s second, and thus successive,

petition for postconviction relief, an exception set forth in R.C. 2953.23(A)(1)(a)

must apply for the trial court to have jurisdiction to entertain the merits of his

petition.   Here, Jackson argues that both of the exceptions set forth in R.C.

2953.23(A)(1) apply to his successive petition for postconviction relief.

       {¶17} First, we will address Jackson’s argument that he was unavoidably

prevented from discovery of the facts upon which he must rely to present his claim

for relief under R.C. 2953.23(A)(1)(a). Specifically, Jackson argues that he was

unavoidably prevented from discovering his intellectual disability. “A defendant is

‘unavoidably prevented’ from the discovery of facts if he had no knowledge of the

existence of those facts and could not have, in the exercise of reasonable diligence,

learned of their existence within the time specified for filing his petition for

postconviction relief.” Cunningham, 2016-Ohio-3106, at ¶ 19. “‘And the “facts”


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contemplated by R.C. 2953.23(A)(1)(a) are the historical facts of the case, which

occurred up to and including the time of conviction.’” Id., quoting State v. Ruark,

10th Dist. Franklin No. 15AP-142, 2015-Ohio-3206, ¶ 11, citing State v. Turner,

10th Dist. Franklin No. 06AP-876, 2007-Ohio-1468, ¶ 11.                                    Further, the

postconviction statute requires that a petitioner be unavoidably prevented from

discovering facts, not the law. State v. Clay, 7th Dist. Mahoning No. 17 MA 0113,

2018-Ohio-985, ¶ 12.

         {¶18} In his present petition for postconviction relief, Jackson argues that he

is intellectually disabled and is therefore ineligible for execution under Atkins v.

Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002).2 On June 20, 2002, in Atkins v.

Virginia, the Supreme Court of the United States held that executing intellectually

disabled persons is cruel and unusual punishment in violation of the Eighth

Amendment to the United States Constitution. Id. at 321. Furthermore, in State v.

Lott, which was decided on December 11, 2002, the Supreme Court of Ohio set

forth a three-part test to be applied in Ohio for courts making a determination of

whether a defendant is intellectually disabled and ineligible for execution under

Atkins. State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, ¶ 18, overruled by State

v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, ¶ 97.



2
  Although earlier courts used the term “mental retardation,” we elect to use the phrase “intellectual
disability” throughout the opinion. See Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002) and State v.
Lott, 97 Ohio St.3d 303, 2002-Ohio-6625.

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       {¶19} Jackson argues that he was unavoidably prevented from timely

discovering his intellectual disability because during his initial postconviction

proceedings, the trial court denied his request to retain a forensic psychologist

experienced in examining individuals charged with capital offenses. For the reasons

that follow, we disagree.

       {¶20} First, a review of Jackson’s initial petition for postconviction relief

and request for an appropriation of funds reveals that Jackson did not actually raise

an Atkins claim in his initial postconviction petition or request an appropriation of

funds specifically for the purpose of evaluating whether he has an intellectual

disability.

       {¶21} On August 13, 2003, Jackson filed his initial petition for

postconviction relief raising 26 claims for relief, including several claims that his

trial counsel was ineffective because he failed to develop and present compelling

mitigation evidence. (Doc. No. 410). Specifically, Jackson argued that his trial

counsel failed to thoroughly investigate his background, including his juvenile

record, his mother’s history of mental illness, addiction, and neglect of Jackson, and

the records of his “lengthy and bizarre history with Children’s Services.” (Id.).

Jackson also alleged that his trial counsel erred by not presenting mitigating

evidence regarding his “severe problems with anger, with drugs, with education,

and with lack of respect for the law * * *.” (Id.). Jackson further argued in his


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initial petition for postconviction relief that his trial counsel failed to request or

demonstrate the need for adequate investigative and expert assistance during the

trial and penalty phase “in order for counsel to fully and thoroughly investigate the

life history and background of [Jackson] and to fully present that life history and

background and explain the effect of that history on his development at the penalty

phase of the trial.” (Id.). Jackson alleged that his trial counsel was ineffective for

failing to employ an expert to “explain the devastating effects of being raised in a

family and in an environment where drugs and alcohol abuse played such a

dominant role.” (Id.).

       {¶22} On August 29, 2003, Jackson filed a motion for appropriation of funds

for investigative and expert assistance to permit his postconviction counsel to fully

investigate and present the claims in his petition for postconviction relief. (Doc.

No. 418). In his brief in support of his motion for appropriation of funds, Jackson

requested funding for the following expert and investigative assistance: “ballistics

expert; gunshot trajectory expert; crime scene reconstruction expert; jury selection

(jury interview) expert; mitigation specialist; forensic psychologist (with an

expertise in the effects of childhood trauma and exposure to drug and alcohol abuse

and its effect on development); cultural expert and attorney expert to testify to the

prevailing professional norms.” (Id.). On September 11, 2003, the trial court denied




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Jackson’s motion for appropriation of funds to hire expert and investigative

assistance. (Doc. No. 419).

       {¶23} Thus, although Jackson argues that his motion for appropriation of

funds was for the purpose of examining him for an intellectual disability, a review

of Jackson’s petition for postconviction relief and motion for appropriation of funds

reveals that Jackson was specifically requesting funds to further his claim that his

trial counsel was ineffective for failing to develop and present mitigating evidence

regarding his childhood trauma and upbringing rather than to develop an Atkins

claim. As the Second District held in State v. Bays, “[t]here is a significant

difference between expert testimony offered for mitigation purposes and expert

testimony offered for Atkins purposes.” State v. Bays, 159 Ohio App.3d 469, 2005-

Ohio-47, ¶ 23 (2d Dist.). Here, Jackson specifically stated in his motion for

appropriation of funds that he was requesting funding to develop the claims he

raised in his initial petition for postconviction relief. Although his petition for

postconviction relief included claims that his trial counsel was ineffective for failing

to develop and present mitigation, his petition for postconviction relief did not

include an allegation that he was intellectually disabled and, thus, ineligible for the

death penalty under Atkins.       Accordingly, Jackson’s request for funding for

mitigation purposes is distinct from a request for funding to develop an Atkins claim.




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       {¶24} Furthermore, Jackson’s initial petition for postconviction relief was

filed after Atkins and Lott, and thus, Jackson’s initial postconviction counsel should

have been aware of the bar against executing intellectually disabled individuals

when filing Jackson’s petition for postconviction relief. See Clay, 2018-Ohio-985,

at ¶ 12 (“Appellant’s alleged state of being unaware of the law on postconviction

relief does not satisfy an exception to the statute’s timeliness requirements.”); State

v. Kane, 10th Dist. Franklin No. 16AP-781, 2017-Ohio-7838, ¶ 17 (“[I]gnorance of

the law does not excuse appellant’s untimely filing of her petition for postconviction

relief.”). Nevertheless, Jackson failed to raise an Atkins claim during his initial

petition for postconviction relief. Accordingly, because Jackson’s counsel did not

raise an Atkins claim or file a petition for postconviction relief requesting funding

specifically for the purpose of developing an Atkins claim, we cannot say that

Jackson was unavoidably prevented from discovering his intellectual disability as

his initial postconviction petition could have raised an Atkins claim or included a

request for funding to develop an Atkins claim.

       {¶25} Furthermore, although Jackson argues that he was unavoidably

prevented from discovering his intellectual disability, there is no indication that he

sought alternative funding to discover his intellectual disability, particularly after

the trial court denied his motion for appropriation of funds. Jackson’s lack of

reasonable diligence is exemplified by the fact that, many years later, he was


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actually able to secure alternative funding to discover the facts which he now uses

to support his claim that he is intellectually disabled. (Doc. No. 456).

       {¶26} Jackson also argues that he was unavoidably prevented from

discovering the facts that support his claim of intellectual disability due to the

ineffective assistance of his trial counsel. (Appellant’s Brief at 24-29). Jackson

argues that if his trial counsel had sought cognitive testing of Jackson, his trial

counsel would have discovered the facts that would have supported his future claim

that he is intellectually disabled and thus ineligible for the death penalty under

Atkins. Although Jackson contends that he would not have been able to raise his

Atkins claim at the time of his initial trial and sentencing because Lott had not yet

been decided, he contends that evidence of his intellectual abilities should have been

used as mitigating evidence at the sentencing phase.

       {¶27} However, as discussed above, Jackson actually did allege in his initial

petition for postconviction relief that his trial counsel was ineffective for failing to

develop and present mitigating evidence and the trial court found his argument to

be without merit. (Doc. Nos. 410, 423). Further, this court affirmed the trial court’s

decision on appeal. Jackson, 2004-Ohio-5350, at ¶ 25. Thus, Jackson’s previous

trial counsel was previously determined to not be ineffective with respect to the

preparation and presentation of mitigating evidence. See State v. Crockett, 8th Dist.

Cuyahoga No. 103199, 2016-Ohio-220, ¶ 16 (finding the petitioner failed to


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demonstrate he was unavoidably prevented from discovering facts to support his

claim for relief because his trial counsel was effective). Furthermore, Jackson had

an opportunity to raise his Atkins claim in his initial postconviction petition, but

failed to do so. Yet, Jackson does not allege that his initial postconviction counsel

was ineffective for failing to discover the same evidence or failing to raise an Atkins

claim during his initial postconviction proceedings. See State v. Peters, 9th Dist.

Wayne No. 09CA0007, 2009-Ohio-6024, ¶ 11 (finding that “the record does not

indicate that the trial court would have found Peters provided clear and convincing

proof that she was unavoidably prevented from discovering her medical condition

but for the ineffective assistance of counsel”).

       {¶28} “Moreover, ‘[t]he fact that appellant raises claims of ineffective

assistance of counsel suggests that the bases for his claims could have been

uncovered if “reasonable diligence” had been exercised.’” Cunningham, 2016-

Ohio-3106, at ¶ 22, quoting State v. Creech, 4th Dist. Scioto No. 12CA3500, 2013-

Ohio-3791, ¶ 18. Accordingly, we find Jackson’s argument that he was unavoidably

prevented from discovering the factual basis of his second petition for

postconviction relief due to the ineffective assistance of his trial counsel to be

without merit.

       {¶29} In conclusion, because Jackson failed to raise an Atkins claim during

his initial postconviction proceedings, failed to request funds for the purpose of


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developing an Atkins claim, and failed to pursue alternative funding, we cannot find

that Jackson exercised reasonable diligence to learn of his intellectual disability

within the time specified for his petition for postconviction relief. Accordingly, we

cannot find that Jackson was unavoidably prevented from discovering the facts upon

which he must rely to present his claim for relief.

       {¶30} Having concluded that Jackson was not unavoidably prevented from

discovering the facts upon which he must rely to present his claim for relief, we now

address Jackson’s argument that the Supreme Court of the United States recognized

a new substantive right that retroactively applies to persons in his situation.

       {¶31} As discussed previously, the Supreme Court of the United States

decided Atkins, which held that executing intellectually disabled persons violates

the Eighth Amendment, in June 2002, prior to Jackson’s trial, sentencing, and initial

petition for postconviction relief. Atkins, 536 U.S. at 321. In Atkins, the Court held

that although intellectually disabled persons are not exempt from criminal sanctions,

their “disabilities in areas of reasoning, judgment, and control of their impulses”

“diminish their personal culpability.” Id. at 306, 318. Accordingly, “they do not

act with the level of moral culpability that characterizes the most serious adult

conduct.” Id. at 306. Thus, the Court held that putting an intellectually disabled

person to death is not a proportionate punishment. Id. at 311. However, the Court

did not dictate a specific standard for determining whether an offender was


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intellectually disabled, but stated that it would “‘leave to the State[s] the task of

developing appropriate ways to enforce the constitutional restriction upon [their]

execution of sentences.’” Id. at 317, quoting Ford v. Wainwright, 477 U.S. 399,

405, 416-417, 106 S.Ct. 2595 (1986).

          {¶32} In State v. Lott, which was decided on December 11, 2002, the

Supreme Court of Ohio set forth a three-part test to be applied in Ohio for courts

making a determination of whether a defendant is intellectually disabled and

ineligible for execution under Atkins. Lott, 2002-Ohio-6625, at ¶ 18, overruled by

Ford, 2019-Ohio-4539, at ¶ 97. The Supreme Court of Ohio decided Lott before

Jackson filed his initial petition for postconviction relief. Thus, Jackson had the

benefit of both Atkins and Lott when he filed his initial petition for postconviction

relief.

          {¶33} Nevertheless, Jackson argues that following the conclusion of his state

proceedings, the Supreme Court of the United States decided a series of three cases

which recognized new rights under the Eighth and Fourteenth Amendments that

apply retroactively to him. Jackson argues that because the cases were decided

subsequent to the filing of his initial petition for postconviction relief, his successive

petition for postconviction relief meets the jurisdictional requirement under R.C.

2953.23. We disagree.




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       {¶34} On May 27, 2014, in Hall v. Florida, the Supreme Court of the United

States held that a Florida law, which defined intellectual disability as having an IQ

of 70 or below, was too rigid. 572 U.S. 701, 704, 134 S.Ct. 1986 (2014). After

analyzing the Eighth Amendment principles behind its decision in Atkins, the court

in Hall stated that “[t]he question this case presents is how intellectual disability

must be defined in order to implement these principles and the holding of Atkins.”

Id. at 709. The court held that the Florida definition of intellectual disability was

unconstitutional because it created an “unacceptable risk” that persons with

intellectual disabilities would be executed. Id. at 704. The court cautioned that

states’ discretion in determining appropriate ways to enforce the restriction on

executing intellectually disabled individuals is not “unfettered” and should “be

informed by the medical community’s diagnostic framework.” Id. at 719, 721.

Accordingly, the court held that “[i]n determining who qualifies as intellectually

disabled, it is proper to consult the medical community’s opinions.” Id. at 710.

Relying on the most recent versions of medical diagnostic manuals, the Supreme

Court concluded that Florida had “disregard[ed] established medical practice” and

diverged from the practices and trends in other states. Id.

       {¶35} In Moore v. Texas (“Moore I”), which was decided in 2017, the

Supreme Court of the United States vacated a Texas Court of Criminal Appeals’s

decision determining that Moore was not intellectually disabled. Moore v. Texas,


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___U.S.___, 137 S.Ct. 1039, 1053 (2017). The court held that the Texas Court of

Criminal Appeals erred by “fail[ing] adequately to inform itself of the ‘medical

community’s diagnostic framework’” and adopting outdated standards for the

determination of what constituted an intellectual disability for Atkins claims. Id.,

quoting Hall at 722.

       {¶36} In a subsequent appeal, the Supreme Court of the United States

determined in Moore v. Texas, ___U.S.___, 139 S.Ct. 666 (2019) (“Moore II”), that

the Texas Court of Criminal Appeals’s decision on remand was inconsistent with

the court’s directive in Moore I because the language and content in the Texas

court’s opinion rested upon analysis which “too closely resembles” that which the

court found improper in Moore I. Moore II at 672.

       {¶37} On November 7, 2019, in State v. Ford, the Supreme Court of Ohio

revisited the three-part test set forth in Lott for making a determination of whether

a defendant is intellectually disabled and ineligible for execution under Atkins.

Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, at ¶ 76-100. Upon review of the test

outlined in Lott, the Supreme Court of Ohio determined that Lott’s holding that there

exists a rebuttable presumption that a defendant with an IQ score above 70 is not

intellectually disabled is no longer valid. Id. at ¶ 100. In so deciding, the Supreme

Court of Ohio expressly overruled Lott. Id.




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       {¶38} In place of the three-part test outlined in Lott, the Supreme Court of

Ohio held that a court determining whether a defendant is intellectually disabled

must consider three core elements:

       (1) intellectual-functioning deficits (indicated by an IQ score

       approximately two standard deviations below the mean—i.e., a score

       of roughly 70 or lower when adjusted for the standard error of

       measurement), (2) significant adaptive deficits in any of the three

       adaptive-skill sets (conceptual, social, and practical), and (3) the onset

       of these deficits while the defendant was a minor.

Id. at ¶ 100.

       {¶39} Jackson argues that because the Supreme Court of Ohio held that the

standard outlined in Lott for determining whether a defendant is intellectually

disabled is no longer valid, “Hall, therefore, represented a new, substantive change

to Ohio law” which must be retroactively applied to his successive petition for

postconviction relief. (Appellant’s Reply Brief at 8). However, Jackson’s reliance

on Ford is misplaced.

       {¶40} In State v. Parker, the Supreme Court of Ohio held that although R.C.

2953.23(A) “permits a common pleas court to entertain an untimely or successive

petition [for postconviction relief] based on a new state or federal right recognized

by the United States Supreme Court, it provided no exception allowing an untimely


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or successive petition to be granted based on a new decision of [the Supreme Court

of Ohio].” State v. Parker, 157 Ohio St.3d 460, 2019-Ohio-3848, ¶ 2. Accordingly,

the Supreme Court of Ohio’s holding in Ford does not provide an exception to the

jurisdictional requirements of R.C. 2953.21. See id. See also State v. Lee, 3d Dist.

Crawford No. 3-18-14, 2018-Ohio-3715, ¶ 12.

       {¶41} Jackson next argues that the United States Supreme Court decisions in

Hall, Moore I, and Moore II recognized new substantive rights under the Eighth and

Fourteenth Amendments which apply retroactively to him and that his claim is

based on those rights. Specifically, Jackson argues that the decisions in Hall, Moore

I, and Moore II “provide[ ] him an opportunity to seek relief from his death sentence

by proving his intellectual disability under the appropriate, applicable medical

standards.” (Appellant’s Reply Brief at 8).

       {¶42} In general, “‘new constitutional rules of criminal procedure will not

be applicable to those cases which have become final before the new rules are

announced.’” Welch v. United States, ___U.S.___, 136 S.Ct. 1257, 1264 (2016),

quoting Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060 (1989). However, “new

substantive rules do apply retroactively.” Id. at 1259-1260, citing Teague at 310

and Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519 (2004). A decision is

substantive if it involves a “‘constitutional determination[ ] that place[s] particular

conduct or persons * * * beyond the State’s power to punish.’” Id. at 1265, quoting


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Schriro at 351-352. See Montgomery v. Louisiana, ___U.S.___, 136 S.Ct. 718, 729

(2016) (A rule is substantive if it precludes “a certain category of punishment for a

class of defendants because of their status or offense.”).

       {¶43} It is not disputed that the Supreme Court of the United States did not

expressly make Hall, Moore I, and Moore II retroactive.              In re Payne, 722

Fed.Appx. 534, 538 (6th Cir.2018). Yet, Jackson argues that the Hall and Moore

decisions themselves are retroactive applications of the rules they announce.

(Appellant’s Brief at 43-44). However, this argument is without merit because in

Hall and Moore, the Supreme Court of the United States “merely analyzed the

application of Atkins claims that were appropriately raised in state post-conviction

proceedings.” Payne at 538.

       {¶44} Nevertheless, some courts have determined that Hall and Moore apply

retroactively. See White v. Commonwealth, 500 S.W.3d 208, 215 (Ky. 2016),

abrogated on other grounds, Woodall v. Commonwealth, 563 S.W.3d 1 (Ky. 2018)

(Hall “is ‘a substantive restriction on the State’s power to take the life’ of individuals

suffering from intellectual disabilities. We are dealing here with a U.S. Supreme

Court directive that not only proscribes intellectually disabled people from being

put to death, but defines the manner in which the mental deficiencies of offenders

must be evaluated. Therefore, Hall must be retroactively applied.”).




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       {¶45} However, we choose to follow a substantial and growing body of case

law that has declined to apply Hall and Moore retroactively. See Phillips v. State,

___So.3d___, 2020 WL 2563476, *4-5 (Fla. 2020) (holding that “[t]he categorical

prohibition on executing the intellectually disabled was not expanded by Hall” and

receding from the Court’s previous holding that Hall warranted retroactive

application); Payne at 538-539 (declining to apply Moore and Hall retroactively);

In re Henry, 757 F.3d 1151, 1158, 1161 (11th Cir.2014) (holding that “Hall did

indeed announce a new rule of constitutional law” that is not retroactive because it

“merely provides new procedures for ensuring that States do not execute members

of an already protected group.”); In re Richardson, 802 Fed.Appx. 750, 755-757

(4th Cir.2020) (declining to apply Hall retroactively); In re Hill, 777 F.3d 1214,

1223 (11th Cir.2015) (“Hall merely provides new procedures for ensuring that

States do not execute members of an already protected group.”); Goodwin v. Steele,

814 F.3d 901, 904 (8th Cir.2014) (denying petitioner’s motion to authorize a

successive application predicated upon Hall because the petitioner “has not made a

prima facie showing that the Supreme Court has held that Hall is retroactive”);

Williams v. Kelley, 858 F.3d 464, 474 (8th Cir.2017) (declining to apply Moore

retroactively); Weathers v. Davis, 915 F.3d 1025, 1026-1027 (5th Cir.2019)

(declining to apply Moore retroactively); Kilgore v. Sec’y, Fla. Dep’t of Corr., 805

F.3d 1301, 1314 (11th Cir.2015) (holding that Hall is not retroactively applicable


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Case No. 1-19-63


because it “merely provides new procedures for ensuring that states follow the rule

enunciated in Atkins” and did not expand the class of individuals protected by

Atkins’s prohibition against the execution of individuals who are intellectually

disabled); Lynch v. Hudson, S.D.Ohio No. 2:07-CV-948, 2017 WL 3404773, *2-3

(Aug. 9, 2017) (declining to apply Moore and Hall retroactively); Elmore v. Shoop,

S.D.Ohio No. 1:07-CV-776, 2020 WL 3410764, *10 (June 22, 2020) (stating that

Hall and Moore do not apply retroactively); Prieto v. Davis, E.D.Va. No.

3:13CV849-HEH, 2014 WL 3867554, *41-42 (Aug. 5, 2014) (Hall does not apply

retroactively). Accordingly, we find that Hall and Moore did not announce new

substantive rights that must be applied retroactively to Jackson.

       {¶46} Having     determined     that    Jackson   failed     to   satisfy   R.C.

2953.23(A)(1)(a), we need not decide the question of whether Jackson showed that

“but for constitutional error at the sentencing hearing, no reasonable factfinder

would have found [Jackson] eligible for the death sentence.”                       R.C.

2953.23(A)(1)(b).    See Cunningham, 2016-Ohio-3106, at ¶ 22.             Accordingly,

because Jackson did not make the requisite showing under R.C. 2953.23(A)(1), the

trial court lacked jurisdiction to consider Jackson’s untimely petition for

postconviction relief. Lee, 2018-Ohio-3715, at ¶ 12.

       {¶47} Because Jackson’s petition is untimely and the trial court lacked

jurisdiction to consider the petition, the trial court should have dismissed Jackson’s


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petition; however, the trial court did not abuse its discretion by denying, rather than

dismissing, Jackson’s petition. See State v. Carter, 3d Dist. Allen No. 1-17-09,

2017-Ohio-4354, ¶ 12, citing Hatfield, 2008-Ohio-1377, at ¶ 8, citing Hamilton,

2004-Ohio-2573, at ¶ 9 and Hensley, 2003-Ohio-6457, at ¶ 7.

       {¶48} Although Jackson argues that the trial court erred by rejecting his

second petition for postconviction relief without a hearing, “[t]he filing of a petition

for postconviction relief does not automatically entitle the petitioner to an

evidentiary hearing.” State v. Andrews, 3d Dist. Allen No. 1-11-42, 2011-Ohio-

6106, ¶ 11, citing State v. Calhoun, 86 Ohio St.3d 279, 282 (1999). Under R.C.

2953.21(D), “[b]efore granting a hearing on a petition * * *, the court shall

determine whether there are substantive grounds for relief.” See State v. Brown, 3d

Dist. Allen No. 1-11-68, 2012-Ohio-2126, ¶ 6, citing Calhoun at 282-283; State v.

Schwieterman, 3d Dist. Mercer No. 10-09-12, 2010-Ohio-102, ¶ 22, citing State v.

Jones, 3d Dist. Defiance No. 4-07-02, 2007-Ohio-5624, ¶ 12. “In making such a

determination, the court shall consider, in addition to the petition, the supporting

affidavits, and the documentary evidence, all the files and records pertaining to the

proceedings against the petitioner * * *.” R.C. 2953.21(D).

       {¶49} “‘[I]f the court determines that there are no substantive grounds for

relief, it may dismiss the petition without an evidentiary hearing.’” State v. Driskill,

3d Dist. Mercer Nos. 10-07-03 and 10-07-04, 2008-Ohio-827, ¶ 13, quoting Jones


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at ¶ 14. “The decision to grant the petitioner an evidentiary hearing is left to the

sound discretion of the trial court.” Andrews at ¶ 11, citing Calhoun at 284.

Accordingly, “[w]e review the trial court’s dismissal of a post-conviction petition

without a hearing for abuse of discretion.” State v. Jeffers, 10th Dist. Franklin No.

10AP-1112, 2011-Ohio-3555, ¶ 23, citing State v. Banks, 10th Dist. Franklin Nos.

10AP-1065, 10AP-1066, and 10AP-1067, 2011-Ohio-2749, ¶ 11. See Driskill at ¶

14. An abuse of discretion suggests the trial court’s decision is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983). When the abuse of discretion standard applies, an appellate court is not to

substitute its judgment for that of the trial court. State v. Thompson, 3d Dist. Henry

No. 7-16-10, 2017-Ohio-792, ¶ 11. Because Jackson has not demonstrated that one

of the exceptions in R.C. 2953.23(A) applies to this case, we find that the trial court

did not abuse its discretion by denying Jackson’s untimely, successive

postconviction relief without an evidentiary hearing. See State v. Workman, 3d Dist.

Auglaize No. 2-19-09, 2019-Ohio-5379, ¶ 17.

       {¶50} Furthermore, because we have found that the trial court lacked

jurisdiction to consider Jackson’s petition, we need not address Jackson’s argument

that the trial court erred by determining that Jackson’s petition for postconviction

relief was barred by res judicata.




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          {¶51} Finally, Jackson argues that the trial court denied him fair process of

his claims and evidence. Specifically, Jackson alleges that the trial court failed to

abide by R.C. 2953.21(D) and give proper consideration to Jackson’s petition,

thereby violating his due process rights and rights to fair consideration. R.C.

2953.21(D) provides that before granting a hearing on a petition for postconviction

relief, “the court shall consider, in addition to the petition, the supporting affidavits,

and the documentary evidence, [and] all the files and records pertaining to the

proceedings against the petitioner * * *.” Jackson asserts that the trial court failed

to afford him the full and necessary consideration required in capital cases due to

the timing of the trial court’s decision on his successive petition for postconviction

relief.     As Jackson notes, on September 4, 2019, he filed his petition for

postconviction relief, which was 45 pages in length and contained over 500 pages

of exhibits. On September 25, 2019, the State filed its answer and motion to dismiss.

The following day, the trial court denied Jackson’s second petition for

postconviction relief. Jackson contends that “[t]he timing suggests that the court

did not review the evidence [he] submitted to support his claim that he is

intellectually disabled.” (Appellant’s Brief at 47). Jackson also argues that because

the trial court denied his second petition for postconviction relief before he was

served with the State’s response, the trial court did not permit Jackson to know of

or respond to the State’s argument prior to denying his petition. (Id.). However,


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Jackson fails, in both his merit brief and reply brief, to provide legal authority

supporting his contention that the 21 days that the trial court had to consider his

second petition for postconviction relief was insufficient for the trial court to give

his petition full and necessary consideration. “Where an appellant fails to develop

an argument in support of his assignment of error, this Court will not create one for

him.” State v. Franks, 9th Dist. Summit No. 28533, 2017-Ohio-7045, ¶ 16, citing

State v. Harmon, 9th Dist. Summit No. 26426, 2013-Ohio-2319, ¶ 6, citing App.R.

16(A)(7) and Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934,

*8 (May 6, 1998). “‘If an argument exists that can support [an] assignment of error,

it is not this [C]ourt’s duty to root it out.’” Id., quoting Cardone at *8. Thus, we

reject Jackson’s argument that the trial court failed to abide by R.C. 2953.21(D) and

give proper consideration to his second petition for postconviction relief.

       {¶52} Accordingly, Jackson’s assignment of error is overruled.

       {¶53} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr




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