[Cite as State v. Moon, 2017-Ohio-8661.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105331




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                  MICHAEL E. MOON
                                                    DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-09-522061-A

        BEFORE:         Laster Mays, J., McCormack, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                   November 22, 2017
                                         -i-




ATTORNEYS FOR APPELLANT

Barry W. Wilford
Sarah M. Schregardus
Kura Wilford & Schregardus Co., L.P.A.
492 City Park Avenue
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Daniel T. Van
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant, Michael E. Moon (“Moon”), appeals the trial court’s

decision to deny his postconviction petition. We affirm.

I.     Facts and Procedural History

       {¶2} This court in State v. Moon, 8th Dist. Cuyahoga No. 101972,

2015-Ohio-1550, ¶ 2-13 (“Moon I”), summarized the facts and procedural history of this

case as follows:

       On July 29, 2008, Moon was at Cleveland Hopkins International Airport
       traveling for a business trip. When his checked bags were sent through
       security screening, baggage scanners discovered 50 images of child
       pornography concealed in several envelopes in his luggage. Because the
       luggage scanner could not penetrate the envelopes, a hand search was
       conducted, revealing the images. Moon was identified as the owner of the
       luggage and arrested.

       On August 6, 2008, Cleveland police obtained a warrant to search the
       remainder of Moon’s luggage and a laptop that were seized at the airport.
       The search revealed nothing other than those images. On August 8, 2008, a
       warrant was purportedly obtained from the Medina County Court of
       Common Pleas to search Moon’s home in Medina, Ohio for further
       evidence that Moon had engaged in criminal activity related to child
       pornography (the “August 8, 2008 search warrant”). As a result of that
       search, police officers recovered seven computer disks that were later
       discovered to contain images of child pornography. A third search
       warrant, to search the property that had been seized from the house during
       the August 8, 2008 search, including various electronic devices, computer
       peripherals, cell phones, floppy discs, CDs and DVDs, was issued on
       August 15, 2008.

       On March 18, 2009, the Cuyahoga County Grand Jury indicted Moon on
       101 counts — four counts of pandering sexually-oriented matter involving a
       minor, 42 counts of illegal use of a minor in nudity-oriented material or
performance, 53 counts of pandering sexually oriented matter involving a
minor and two counts of possession of criminal tools. The offenses arose
from Moon’s possession of over 500 images of child pornography. State
v. Moon, 8th Dist. Cuyahoga No. 93673, 2010-Ohio-4483, ¶ 3.
Forty-seven of the counts (Counts 1-46 and 100) related to the images and
other evidence discovered during the search of Moon’s checked baggage at
the airport; the remaining counts (Counts 47-101) related to images
discovered and materials seized as a result of the August 8, 2008 search of
Moon’s home.

On June 8, 2009, Moon pled guilty to four counts of pandering sexually
oriented matter involving a minor in violation of R.C. 2907.22(A)(2)
(Counts 1-4), 46 counts of illegal use of a minor in nudity-oriented material
or performance in violation of R.C. 2907.323(A)(1) (Counts 5-40 and
47-56) and two counts of possession of criminal tools in violation of R.C.
2923.24 (Counts 100-101). Forty-one of the counts to which Moon pled
guilty (Counts 1-40 and 100) related to the images and other evidence
discovered during the search of Moon’s checked baggage at the airport; the
remaining counts (Counts 47-56 and 100-101) related to the images
discovered and materials seized during the search of Moon’s home. In
exchange for his guilty pleas, the remaining counts were nolled.

Although Moon and his counsel were aware that search warrants had
allegedly been obtained for the search of Moon’s luggage, laptop and home,
Moon’s trial counsel did not request or obtain copies of the search warrants
or otherwise review the search warrants before Moon entered his guilty
pleas. The prosecutor purportedly stated at the plea hearing that he “did
not provide a copy of the search warrant * * * because it was filed under
seal” and “no request was ever made to unseal that warrant.”

On July 8, 2009, the trial court sentenced Moon to a prison term of (1) six
years each on Counts 1-4, to run concurrently with each other, (2) six years
each on Counts 5-40, to run concurrently with each other, (3) six years each
on Counts 47-56, to run concurrently with each other and (4) one year each
on Counts 100 and 101. The sentences on Count 1 (six years), Count 5 (six
years), Count 47 (six years), Count 100 (one year) and Count 101 (one year)
were to run consecutively, for an aggregate prison sentence of 20 years.
The trial court also imposed a five-year mandatory period of postrelease
control on counts 1, 5 and 47, a three-year period of discretionary
postrelease control on Counts 100 and 101 and classified Moon as a Tier II
sex offender/child victim offender subject to the requirements of that
classification for 25 years.
Moon appealed his convictions and sentences, retaining new counsel to
represent him in his appeal. Among the issues Moon raised in his appeal
was that trial counsel was ineffective for failing to request that the search
warrant relating to the search of Moon’s home be unsealed prior to advising
Moon to enter his guilty pleas. Moon, 2010-Ohio-4483 at ¶ 6. Moon
argued that by not requesting and reviewing the sealed search warrant, trial
counsel was deprived of the possibility of arguing that the search warrant
was defective and that, if the search warrant had been found to be defective,
the offenses linked to the images found on the computer disks seized during
the search of Moon’s home would have been eliminated. Id. at ¶ 8. This
court rejected Moon’s argument as “pure speculation,” reasoning that the
search warrant could have just as likely been valid and that “because we
obviously do not know what is contained in the search warrant,” there was
no evidence that the unsealing of the warrant would have changed the result
of the proceedings. Id. at ¶ 9. On September 23, 2010, this court affirmed
Moon’s convictions but remanded the case to the trial court for a hearing
pursuant to R.C. 2929.191 on the criminal possession counts (Counts 100
and 101). Id. at ¶ 34. Moon’s other sentences were affirmed. Id. The
Ohio Supreme Court declined jurisdiction. State v. Moon, 128 Ohio St. 3d
1412, 2011-Ohio-828, 942 N.E.2d 384.

After his direct appeal was unsuccessful, Moon hired new counsel to
represent him. On October 13, 2011, Moon’s counsel filed a motion to
unseal the search warrants “for the limited purpose of providing a copy to
[new] counsel.” The state did not oppose the motion, and the trial court
granted the unopposed motion on December 5, 2011.

Nearly six months later, on May 18, 2012, Moon filed a motion with the
trial court to have “the search warrant[s] issued in Mr. Moon’s case be
made a part of the official court record” under App.R. 9(E). The “search
warrant[s]” Moon sought to have added to the record, which Moon attached
to his motion, consisted of (1) the August 6, 2008 search warrant, (2) the
August 8, 2008 affidavit for search warrant, (3) the August 15, 2008 search
warrant and (4) the inventory lists itemizing the items recovered in
connection with the searches conducted on August 6 and 8, 2008. The
August 8, 2008 search warrant itself was not among the documents Moon
sought to have added to the record. The state opposed the motion, arguing
that the issue was moot because there was no pending appeal and that this
court had already ruled on the issues Moon had raised regarding the August
8, 2008 search warrant and whether trial counsel’s failure to obtain,
review and/or challenge that warrant constituted ineffective assistance of
trial counsel. On May 29, 2012, the trial court denied the motion. Moon
did not appeal that ruling.

On May 31, 2012, Moon filed a petition for a writ of habeas corpus with the
United States District Court for the Northern District of Ohio, asserting that
he had been denied effective assistance of counsel in violation of the Sixth
and Fourteenth Amendments to the United States Constitution when trial
counsel advised him to plead guilty to various charges without examining
the search warrant authorizing the search of his home or filing a motion to
unseal the search warrant. Moon v. Robinson, N.D.Ohio No. 1:12cv1396,
2013 U.S. Dist. LEXIS 108799, *7 (Aug. 2, 2013). The district court
found that the performance of both trial and appellate counsel was deficient
for their respective failures to (1) file a motion to unseal the search warrant,
(2) investigate the existence of probable cause to support it and (3) provide
the appellate court with an opportunity to review the merits of Moon’s
claim of ineffective assistance of trial counsel. The district court held,
however, that because the search warrant and warrant application were not
part of the state court record, it could not consider the search warrant and,
therefore, could not make a determination of whether Moon was prejudiced
by the deficient performance of counsel. Id. at *14-19. The district court
denied Moon’s habeas petition without prejudice and held that “in the
interests of equity,” Moon would be permitted to return to state court to
attempt to litigate his challenge to the validity of the search warrant
“whether by an appeal of the trial court’s denial of his motion to correct the
record under Ohio App. R. 9(E), a motion to re-open his direct appeal under
Ohio App. R. 26(B), or other appropriate postconviction review
proceedings,” id. at *21, and could thereafter, if necessary, return to the
district court within 30 days of exhausting his state remedies. Id. at *22.
On August 30, 2013, Moon filed an application to reopen his appeal
pursuant to App.R. 26(B). Moon argued that his prior appellate counsel
was ineffective for (1) failing to obtain a copy of the sealed search warrant
and moving to add it to the record in his direct appeal and (2) failing to
argue that trial counsel was ineffective for failing to file a motion to
suppress based on the allegedly invalid search warrant. State v. Moon, 8th
Dist. Cuyahoga No. 93673, 2014-Ohio-108, ¶ 7. This court denied
Moon’s application to reopen the appeal, concluding that, assuming Moon
had established good cause for the delayed filing of an App.R. 26(B)
application, he had failed to demonstrate a genuine issue as to whether he
was deprived of the effective assistance of appellate counsel on appeal
under App.R. 26(B). The court held that Moon could not establish a claim
of ineffective assistance of appellate counsel by adding new materials to the
appellate record that were not part of the trial court record and then arguing
        that counsel should have raised additional issues in Moon’s direct appeal
        revealed by the newly added materials. Id. at ¶ 9-12. The court further
        noted that a postconviction proceeding, rather than a direct appeal, is the
        proper mechanism for asserting an ineffective assistance of trial counsel
        claim that is based on evidence dehors the record. Id. at ¶ 13. Once
        again, the Ohio Supreme Court declined jurisdiction. State v. Moon, 138
        Ohio St. 3d 1497, 2014-Ohio-2021, 8 N.E.3d 965. Moon’s litigation of
        this issue continued.

        On February 20, 2014, Moon filed a motion to withdraw his guilty pleas
        pursuant to Crim.R. 32.1 and a petition to vacate and set aside his
        sentences. He asserted the same grounds for both motions, arguing that he
        should be permitted to withdraw his pleas and that his sentences should be
        vacated because trial counsel rendered ineffective assistance by (1) failing
        to request and review the August 8, 2008 search warrant and (2) failing to
        move to suppress the evidence seized as a result of the search warrant prior
        to advising Moon to enter his guilty pleas. In support of each motion,
        Moon attached the prior decisions that had been issued by this court and the
        federal district court in the case, the August 6, 2008 search warrant, the
        August 8, 2008 affidavit for search warrant, the August 15, 2008 search
        warrant and the inventory lists itemizing the items recovered in connection
        with the searches conducted on August 6 and 8. The state opposed the
        motions, asserting that no manifest injustice existed that would warrant
        Moon’s guilty pleas being vacated and that Moon’s petition for
        postconviction relief was untimely. On September 8, 2014, the trial court
        summarily denied both motions.

        {¶3} In Moon I this court ruled:

        We find that the trial court lacked jurisdiction to consider, and, therefore,
        properly denied, Moon’s motion to withdraw his guilty pleas. However,
        for the reasons that follow — in particular the absence of any evidence in
        the record demonstrating that the search warrant was, in fact, issued — we
        conclude that the trial court abused its discretion in denying Moon’s
        postconviction petition without a hearing. We remand the case for the trial
        court to conduct a hearing to investigate the circumstances surrounding the
        alleged search warrant and to determine whether Moon is entitled to the
        relief he seeks on his postconviction petition.

Id. at ¶ 1.
      {¶4} In light of this decision, the trial court conducted a hearing and heard

arguments from both parties.    The trial court’s October 4, 2016 decision stated, “there

has never been a dispute that Defendant’s petition for postconviction relief is untimely.

As such, Defendant must satisfy the untimely petition requirement of R.C. 2953.23.”

See Journal Entry No. 95970903 (Dec. 4, 2016). The trial court held that Moon did not

prove by clear and convincing evidence that, but for a constitutional error at trial, no

reasonable factfinder would have found the petitioner guilty of the offense of which the

petitioner was convicted.   The trial court further held that because Moon failed to satisfy

R.C. 2953.23(A)(1)(b) as well, his motion was untimely, could not be entertained by the

trial court, and was denied.   As a result, Moon filed this appeal assigning one error for

our review:

      I.      The trial court abused its discretion when it denied Mr. Moon’s
              postconviction petition in violation of the Fourth, Fifth, Sixth, and
              Fourteenth Amendments to the United States Constitution.

I.    Standard of Review

      {¶5}    We review the denial of appellant’s petition for an abuse of discretion.

State v. Stone, 2d Dist. Clark No. 2011 CA 96, 2012-Ohio-4755, ¶ 22, citing State v.

Wells, 2d Dist. Champaign No. 2010 CA 5, 2010-Ohio-3238, ¶ 11. To constitute an abuse

of discretion, the ruling must be unreasonable, arbitrary, or unconscionable. Blakemore

v. Blakemore, 5 Ohio St.3d 217,450 N.E.2d 1140 (1983).         State v. Pettway, 8th Dist.

Cuyahoga No. 99211, 2013-Ohio-2542, ¶ 21.

II.   Law and Analysis
       {¶6} In Moon’s sole assignment of error, he argues that the trial abused its

discretion when it denied his postconviction petition because it was untimely, and Moon

failed to satisfy R.C. 2953.23(A)(1)(b). R.C. 2953.23 states:

       (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
              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)(1)(a) and (b).

       {¶7} Moon argues that his petition was not untimely because he diligently did

everything in his ability to obtain the warrant and get judicial review.   However, the trial

court disagreed.   In its October 4, 2016 journal entry, the trial court stated that, “[r]ather

than comport with R.C. 2953.23, Defendant filed a motion for federal habeas on May 21,
2012 arguing insufficiency of counsel concerning the lack of inquiry into the search

warrant. Defendant did so without exhausting his state remedies.” See Journal Entry

No. 95970903 (Dec. 4, 2016).

      Under 28 U.S.C. 2254, a person in custody pursuant to a state court
      judgment may challenge the conviction and sentence in federal court by
      applying for a writ of habeas corpus. Federal courts may only consider an
      application for a writ of habeas corpus on the ground that the prisoner’s
      confinement violates the Constitution, laws, or treaties of the United States.
      28 U.S.C. 2241(c)(3); 28 U.S.C. 2254(a). Federal courts may only grant
      relief for state violations of a federal law if the violation rises to the level of
      a “‘fundamental defect, which inherently results in a complete miscarriage
      of justice,’ or is ‘inconsistent with the rudimentary demands of fair
      procedure.’” Reed v. Farley, 512 U.S. 339, 348, 114 S.Ct. 2291,129
      L.Ed.2d 277 (1994), quoting Hill v. United States, 368 U.S. 424, 428, 82
      S.Ct. 468, 7 L.Ed.2d 417 (1962).

      A prisoner must litigate federal law challenges to his conviction in state
      court before bringing them to federal court. Coleman v. Thompson, 501
      U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The failure to
      assert claims in state court bars a prisoner from later litigating those claims
      in federal habeas proceedings because the prisoner failed to exhaust
      available state remedies. Id. This concept is known as “procedural
      default.” However, a petitioner may overcome a “procedural default” by
      demonstrating “cause” and “prejudice.” Wainwright v. Sykes, 433 U.S. 72,
      84, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

State v. Glover, 8th Dist. Cuyahoga Nos. 100330 and 100331, 2014-Ohio-3228, ¶ 21-22.

      {¶8} Moon did not exhaust his state remedies.         Nor did he demonstrate cause or

prejudice in his claims because the district court dismissed his petition for habeas and

decided that

      Moon shall be permitted to return to state court to litigate his challenge to
      the validity of the search warrant, whether by an appeal of the trial court’s
      denial of his motion to correct the record under Ohio App. R. 9(E), a
      motion to re-open his direct appeal under Ohio App. R. 26(B), or other
      appropriate postconviction review proceedings. He shall commence that
         process within 30 days of my order. After the conclusion of the state court
         proceedings, he then must re-file his habeas petition, supplementing the
         record to reflect the intervening state court proceedings, within 30 days.
         See Zarvela v. Artuz, 254 F.3d 374 (2nd Cir.2001). (“If either condition of
         the stay is not met, the stay may later be vacated nunc pro tunc as of the
         date the stay was entered, and the petition may be dismissed * * *”).

Moon v. Robinson, N.D.Ohio No. 1:12cv1396, 2013 U.S. Dist. LEXIS 108799 (Aug. 2,

2013).

         {¶9} After the district court directed him back to the state court, Moon filed a

motion to reopen his appeal with this court. We denied this motion on the grounds that

the warrant was still not in the record with the trial court. Moon did not file a petition

with the trial court regarding the search warrant until two years after he was aware of the

facts upon which he must base his claim for relief.

         The timeliness requirement of R.C. 2953.21 is jurisdictional. State v.
         Beaver, 131 Ohio App.3d 458, 722 N.E.2d 1046 (11th Dist.1998); State v.
         Cobb, 8th Dist. Cuyahoga No. 80265, 2002-Ohio-2138, ¶ 30. Thus, a trial
         court lacks jurisdiction to entertain an untimely filed petition for
         postconviction relief that does not meet the exceptions set forth by, in this
         case, R.C. 2953.23(A)(1). Beaver; State v. Hill, 129 Ohio App.3d 658, 661,
         718 N.E.2d 978 (1st Dist.1998); State v. Gipson, 12th Dist. Warren
         No. CA2001-11-103, 2002-Ohio-4128, ¶ 16.

State v. Jackson, 8th Dist. Cuyahoga No. 100048, 2014-Ohio-1514, ¶ 19. We agree with

the trial court that the petition was untimely, and Moon had the facts for which he could

have presented a claim for relief.

         {¶10} R.C. 2953.23 also directs the court to consider an untimely motion if Moon

shows 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. Other than stating that no reasonable factfinder would have found him guilty,

Moon does not demonstrate that assertion by providing clear and convincing evidence.

         In State v. Eppinger, infra, the Ohio Supreme Court defined the clear and
         convincing evidence standard as follows: “Clear and convincing evidence is
         that measure or degree of proof which will produce in the mind of the trier
         of facts a firm belief or conviction as to the allegations sought to be
         established. It is intermediate, being more than a mere preponderance, but
         not to the extent of such certainty as is required beyond a reasonable doubt
         as in criminal cases. It does not mean clear and unequivocal.” State v.
         Eppinger, 91 Ohio St.3d 158, 164, 743 N.E.2d 881 (2001), citing Cross v.
         Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).

State v. Mallette, 8th Dist. Cuyahoga No. 87984, 2007-Ohio-715, ¶ 51.

         {¶11} Moon was found with over 500 images of child pornography in his

possession. He pled guilty to the charges. Counts 1-46 and 100 related to the images

confiscated at the airport, which were outside the scope of the search warrant at issue.

He admitted guilt to the offenses in open court and stated that his plea was not coerced or

induced.

         In reviewing a trial court’s decision based on clear and convincing
         evidence, an appellate court must examine the record to determine whether
         sufficient evidence exists to satisfy the requisite degree of proof. State v.
         Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54.

Id. at   ¶ 50.   In examining the record, there is not sufficient evidence that Moon would

not have been found guilty of the charges for which he pled guilty.            Therefore, we

overruled Moon’s sole assignment of error.

         {¶12} Judgment is affirmed.

         It is ordered that the appellee recover from appellant costs herein taxed.

         The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



______________________________________
ANITA LASTER MAYS, JUDGE

TIM McCORMACK, P.J., and
SEAN C. GALLAGHER, J., CONCUR
