[Cite as State v. Jackson, 2017-Ohio-2651.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104132




                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                 JEREMIAH JACKSON
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-09-532145-A

        BEFORE: E.T. Gallagher, J., Keough, A.J., and Stewart, J.

        RELEASED AND JOURNALIZED: May 4, 2017
ATTORNEYS FOR APPELLANT

Timothy Young
Ohio Public Defender

BY:    Isa Mauch
       Daniel Jones
Assistant Ohio Public Defenders
250 East Broad Street, Suite 1400
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY:    Mary McGrath
       Saleh Awadallah
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

      {¶1} Defendant-appellant, Jeremiah Jackson (“Jackson”), appeals from the

judgment of the common pleas court dismissing his petition for postconviction relief

without a hearing.   He raises the following assignments of error for review:

      1. The trial court erred by applying the doctrine of res judicata to bar
      Jackson’s sixth and eighth through twelfth grounds for relief.

      2. The trial court erred in failing to allow discovery and in failing to fund
      needed experts on intellectual disabilities and sex offender status issues.

      3. Jackson’s claims for postconviction relief present sufficient operative
      facts to merit relief or, at the minimum, an evidentiary hearing.

      4. The trial court erred in dismissing Jackson’s postconviction petition
      when he presented sufficient operative facts to merit relief, or at a
      minimum, an evidentiary hearing, on the ineffective assistance of counsel
      claims.

      5. The trial court erred in dismissing Jackson’s constitutional claim of
      disproportionate capital sentencing by race, where the facts and statistics
      offer full support for these assertions.

      6. The trial court erred when it dismissed Jackson’s constitutional claim
      that his waiver of jury trial was not knowing, voluntary, and intelligent.

      7. The trial court displayed prejudicial bias against Jackson’s trial defense
      counsel, thus violating his constitutional right to a fair trial conducted
      before an unbiased tribunal.

      8. The trial court erred in dismissing Jackson’s tenth and eleventh claims
      for relief, when he presented sufficient operative facts to merit relief or, at
      the minimum, an evidentiary hearing.
         9. The trial court erred in dismissing Jackson’s thirteenth claim for relief, when he
         presented sufficient operative facts to merit relief or, at a minimum, an evidentiary
         hearing.

         10. The trial court erred in dismissing Jackson’s fourteenth claim for relief, when the
         cumulative effect of all other errors should have entitled him to relief.

         {¶2} After careful review of the record and relevant case law, we affirm the trial court’s

judgment.

                                           I. Procedural History

         {¶3} The underlying criminal case against Jackson arises from the aggravated murder of Tracy

Pickryl and the commission of other felony offenses during a 16-day crime spree in Cuyahoga, Erie,

and Lorain counties.     In December 2009, Jackson was named in a 42-count indictment, charging him

with counts of aggravated murder, attempted murder, felonious assault, theft, robbery, aggravated

robbery, and kidnapping.          Each of these aggravated-murder counts included death-penalty

specifications.

         {¶4} In March 2010, Jackson executed a jury waiver and opted for a trial before a three-judge

panel.    At the conclusion of trial, the three-judge panel found Jackson guilty of the aggravated murder

counts and the accompanying death-penalty specifications.       The panel also found Jackson guilty of all

noncapital counts and the accompanying gun specifications. Following a mitigation hearing, the panel

sentenced Jackson to death.

                {¶5} In June 2010, Jackson appealed his convictions and death sentence to the

         Ohio Supreme Court.       In his appeal, Jackson raised 14 propositions of law.         The

         principal issues for review included the trial court’s decision to conduct a limited hearing

         regarding an issue under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d
335 (2002), the validity of the jury waiver, the jurisdiction of the Cuyahoga County Grand

Jury over offenses occurring in different counties, the sufficiency of the indictment,

prosecutorial misconduct during the penalty phase, various claims of ineffective

assistance of counsel, and the constitutionality of Ohio’s death penalty.

       {¶6} In September 2014, the Ohio Supreme Court affirmed Jackson’s convictions

and sentence of death.     State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23

N.E.3d 1023, reconsideration denied, State v. Jackson, 142 Ohio St.3d 1425,

2015-Ohio-1353, 28 N.E.3d 123. The United States Supreme Court denied certiorari.

       {¶7} While his appeal was pending before the Ohio Supreme Court, Jackson filed

a petition for postconviction relief, which set forth 14 grounds for relief. On this same

date, Jackson filed a motion for discovery and a motion for funds to hire an expert on

intellectual disabilities and a sex offender expert.   In May 2011, the trial court denied

Jackson’s motion for discovery and motion for funds for experts. In January 2016, the

trial court dismissed Jackson’s postconviction petition without a hearing, stating in

pertinent part:

       After careful review of the [record] and consideration of each of defendant’s 14
asserted grounds for relief, the court hereby dismisses the petition for post[-]conviction
relief without a hearing. No hearing is granted because the petition and its
accompanying materials and the entire record of the proceedings show that defendant is
not entitled to relief under any of the grounds set for relief. Defendant has failed to
sustain his burden to provide the court with evidentiary documents containing sufficient
operative facts to demonstrate his entitlement to relief under the petition.

{¶8} Jackson now appeals from the trial court’s judgment.

                                 II. Law and Analysis
       {¶9} For the purposes of judicial clarity, we review Jackson’s assignments of error out of order.

                         A. Motion for Further Discovery and Expert Funds

       {¶10} In his second assignment of error, Jackson argues the trial court erred by failing to allow

further discovery and by failing to fund needed experts on intellectual disabilities and sex offender

status issues. Jackson contends that “such relevant evidence” would have assisted him in supporting

his petition for postconviction relief.

              {¶11} The long-standing rule in Ohio is that a convicted criminal defendant has no

       right to additional or new discovery, whether under Crim.R. 16 or any other rule, during

       postconviction relief proceedings.      See State ex rel. Love v. Cuyahoga Cty. Prosecutor’s

       Office, 87 Ohio St.3d 158, 718 N.E.2d 426 (1999).          See also State v. Bryan, 8th Dist.

       Cuyahoga No. 93038, 2010-Ohio-2088, ¶ 45; State v. Taylor, 8th Dist. Cuyahoga No.

       80271, 2002-Ohio-2742, ¶ 19 (courts are not required to provide petitioners discovery in

       postconviction proceedings).       The trial court, therefore, did not err by denying Jackson’s

       motion for discovery.         See State v. Hale, 8th Dist. Cuyahoga No. 103654,

       2016-Ohio-5837, ¶ 52.

              {¶12} Moreover, while an indigent defendant sentenced to death has a statutory

       right under R.C. 2953.21 to appointed counsel to pursue a timely filed, first

       postconviction petition, the statute “does not provide for appointment of experts or

       investigators.” State v. Monroe, 10th Dist. Franklin No. 04AP-658, 2005-Ohio-5242, ¶

       15. Ohio courts have concluded that there is no constitutional right to the appointment

       of an expert or an investigator even where the statute provides for appointed counsel in a
postconviction proceeding.        Id., citing State v. Smith, 9th Dist. Lorain No. CA

98CA007169, 2000 Ohio App. LEXIS 972 (Mar. 15, 2000), and State v. Trummer, 7th

Dist. Columbiana No. 96 CO 97, 1998 Ohio App. LEXIS 6193 (Dec. 16, 1998). See

also State v. Coleman, 2d Dist. Clark No. 2001-CA-42, 2002-Ohio-5377, ¶ 109 (noting

that there is no constitutional or statutory right to funding of an expert in aid of a

postconviction   petition).   Accordingly, we are unable to conclude that the trial court

erred in denying Jackson’s request for funds to obtain an expert on intellectual disabilities

and sex offender status issues.

       {¶13} Jackson’s second assignment of error is overruled.



                         B.    Petition for Postconviction Relief

       {¶14} We address Jackson’s remaining assignments of error together because they

each concern the trial court’s denial of his petition for postconviction relief. Jackson

argues that because he attached evidence outside the record, the trial court erred by

dismissing some of the grounds listed in his petition for postconviction relief based on the

doctrine of res judicata.     In addition, Jackson argues that he presented sufficient

operative facts to merit postconviction relief or, at a minimum, an evidentiary hearing.

       {¶15} A postconviction proceeding is not an appeal of a criminal conviction, but,

rather, a collateral civil attack on the judgment. State v. Steffen, 70 Ohio St.3d 399, 639

N.E.2d 67 (1994). R.C. 2953.21(A)(1)(a) allows Jackson to file a petition asking the

trial court to vacate or set aside the judgment of conviction or sentence.       Jackson, as
petitioner, must state all grounds for relief on which he relies, and he waives all other

grounds not so stated.       R.C. 2953.21(A)(4).      In determining whether substantive

grounds for relief exist, the trial court must consider, among other things, the petition, the

supporting affidavits, and the documentary evidence filed in support of the petition.

R.C. 2953.21(C).

       {¶16} A trial court’s decision to deny a postconviction petition without a hearing is

reviewed under the abuse of discretion standard.            State v. Abdussatar, 8th Dist.

Cuyahoga No. 92439, 2009-Ohio-5232, ¶ 15.              The trial court does not abuse its

discretion in dismissing a petition for postconviction relief without a hearing where (1)

the petitioner fails to set out sufficient operative facts to establish substantive grounds for

relief, or (2) the operation of res judicata prohibits the claims advanced in the petition.

Id.   A petition for postconviction relief is not the proper vehicle to raise issues that were

or could have been determined on direct appeal. State v. Perry, 10 Ohio St.2d 175, 226

N.E.2d 104 (1967).       The evidence submitted with the petition must be competent,

relevant, and material and not merely cumulative of or alternative to evidence presented

at trial. State v. Combs, 100 Ohio App.3d 90, 652 N.E.2d 205 (1st Dist.1994).

       {¶17} We review the trial court’s ruling     on a postconviction petition for an abuse

of discretion.    State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶

45.

                 1. Ineffective Assistance of Counsel — Mitigation Phase
       {¶18} We will now address Jackson’s argument that the trial court erred in

dismissing his petition for postconviction relief without a hearing where he presented

sufficient operative facts to support his claims of ineffective assistance of counsel during

the mitigation phase of his trial.

       {¶19} The imposition of the death penalty requires that one of ten specific

statutory factors is laid out in the indictment and proven beyond a reasonable doubt at

trial. R.C. 2929.04(A). In this case, Jackson was found guilty of the death-penalty

factors specified in R.C. 2929.04(A)(5) and (7).

       {¶20} After one of the R.C. 2929.04(A) factors is found to have been proven

beyond a reasonable doubt, the court or jury

       shall consider, and weigh against the aggravating circumstances proved
       beyond a reasonable doubt, the nature and circumstances of the offense, the
       history, character, and background of the offender, and all of the following
       factors:

              ***

              (3) Whether, at the time of committing the offense, the
              offender, because of a mental disease or defect, lacked
              substantial capacity to appreciate the criminality of the
              offender’s conduct or to conform the offender’s conduct to
              the requirements of the law;

              ***

              (5) The offender’s lack of a significant history of prior
              criminal convictions and delinquency adjudications;

              (6) If the offender was a participant in the offense but not the
              principal offender, the degree of the offender’s participation
              in the offense and the degree of the offender’s participation in
              the acts that led to the death of the victim;
             (7) Any other factors that are relevant to the issue of whether
             the offender should be sentenced to death.

R.C. 2929.04(B).

      {¶21} The existence of any mitigating factors does not preclude imposition of the

death penalty.   However, these factors shall be weighed against the aggravating factors.

R.C. 2929.04(C).



                                 i. Mitigation Evidence

      {¶22} At the mitigation hearing, defense counsel introduced several exhibits and

the expert testimony of John Matthew Fabian, Ph.D., a clinical psychologist, who was

retained by counsel.     Dr. Fabian evaluated Jackson for the purpose of providing

mitigation evidence at trial.   In the course of his evaluation, Dr. Fabian reviewed

Jackson’s school records, prison records, employment history, medical records, and the

forensic psychological reports completed by the court Psychiatric Clinic. Dr. Fabian

also interviewed Jackson’s parents and other family members.

      {¶23} Dr. Fabian reported that Jackson has worked at a variety of jobs, but was

homeless and unemployed at the time of the offenses. Jackson’s family reported that

Jackson is married but that the marriage is extremely dysfunctional. Jackson, 141 Ohio

St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, at ¶ 284.

      {¶24} In his written report and testimony, Dr. Fabian stated that Jackson had a

significant history of alcohol and drug use leading up to substance dependence. Jackson
reported that he began using alcohol and marijuana at the age of 14.   Dr. Fabian testified

that Jackson’s “drugs of choice were alcohol, phencyclidine or what we call PCP or angel

dust, cannabis, marijuana, and then he’s taken opiate-type pills such as Oxycontin, used

and abused cocaine and LSD.” Jackson reported that he was using an ounce of PCP and

a quarter-ounce to a half-ounce of marijuana every day. Jackson also reported using

cocaine on a daily basis during the last few years and drinking significant amounts of

alcohol. Jackson at ¶ 289.

       {¶25} Jackson was administered the substance-abuse screening inventory

(“SASSI-3”) and “clearly met [the] criteria for substance dependence, both alcohol and

drug dependence.”    Dr. Fabian testified that Jackson “reported symptoms of dependence,

nausea, dizziness, hallucinations, flashbacks, [and] drinking more than intended, [and] his

substances have interfered with relationships, so it’s affected work and school.”

Jackson at ¶ 290.

       {¶26} Dr. Fabian further testified about the link between substance abuse and

murder, stating:

       there’s been some research discussing * * * the likelihood of there being
       alcohol or drugs involved in homicide cases and the numbers are quite
       high. Perhaps even up to a third or 50 percent of homicide cases there is
       some type of substance abuse involved by the perpetrator.

       ***

       Individuals that are under the intoxication of PCP—well, Jeremiah called
       himself or referred to himself as a werewolf. So they can hallucinate, they
       can have faulty paranoid thinking to the threshold of a delusion, a fixed
       false bizarre/nonbizarre belief.
      See Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, at ¶ 225.              Dr.

      Fabian opined that “there is a possibility that there was some evidence of intoxication and

      a substance-induced psychosis due to the PCP that he had used.”

             {¶27} Dr. Fabian testified that Jackson “does not suffer from any significant

      mental illness such as psychosis or mood disorder.” However, Dr. Fabian stated that

      testing indicated that Jackson has “cognitive impairments in various areas including low

      intelligence,   deficient   academic    achievement     abilities   and   some    cognitive

      neuropsychological deficits.   I believe * * * that they are connected and correlated with

      one another.” Dr. Fabian supported his conclusion with evidence of Jackson’s poor

      grades in school and intelligence-test results showing that he had a 75 IQ.

             {¶28} During his testimony, Dr. Fabian discussed the possible link between

      Jackson’s low intelligence and his drug use. According to Dr. Fabian,

             Individuals with cognitive impairment especially residing in areas such as
             [Jackson]’s, low socioeconomic areas with histories of drug trafficking and
             drug use are more prone to be using substances such as that.

             {¶29} Dr. Fabian also testified that Jackson’s low-intellectual functioning is one of

      several factors that “would be related empirically to some degree in this case to violence.”

       He stated that such factors are cumulative and additive in nature:

      So the fact that this individual has low intellectual functioning, poor verbal skills,
      substance abuse and dependence, was potentially intoxicated at the time of the offense,
      unemployed, experienced relationship problems, and had access to weapons and
      substances * * * I think those would act cumulatively rather than just in isolation.

See Jackson at ¶ 227-229
       {¶30} Dr. Fabian also weighed Jackson’s statement that he had been sexually

abused when he was a child by two different women who attended his father’s church.

Dr. Fabian was unable to verify Jackson’s claim of child abuse. However, Dr. Fabian

explained that assuming Jackson was abused, he was at a “higher risk” for “problematic

behaviors.”

       {¶31} In addition to the testimony submitted by Dr. Fabian, defense counsel

further reiterated its position that Jackson’s drug use, poor socioeconomic environment,

homelessness, unemployment, and estrangement from his wife were significant mitigating

factors, which showed that Jackson was “spiraling down” at the time of the offenses.

Finally, counsel urged the court to show mercy in arriving at its decision.

       {¶32} In its sentencing opinion, the trial court carefully weighed all mitigating

factors supported by the evidence, including Jackson’s drug use, “lower than average

intelligence,” his remorse, acceptance of responsibility, his employment history, and other

“psychosocial stressors.” In addition, the trial court considered the support and love

Jackson’s family demonstrated throughout trial and defense counsel’s suggestion that

Jackson was the victim of physical and sexual abuse as a minor.       Ultimately, however,

the trial court concluded that the foregoing mitigating factors did not weigh in favor of a

sentence other than a death sentence.   The court found that Jackson’s conduct was “cold,

calculated” and “showed foresight, planning, cunning, and studied preparation.”

                               ii. Arguments on Appeal
       {¶33} In his first, second, third, fourth, and fifth grounds for relief, Jackson argues

that he was denied effective assistance of counsel during the mitigation phase of his

capital trial where counsel (1) failed to obtain a complete and sufficient mental health

assessment from a competent psychologist, (2) failed to move the trial court for

appointment of an expert in intellectual disability, (3) failed to move the trial court for

appointment of an expert in substance abuse/dependence, (4) failed to move the trial court

for appointment of an expert in sex offender treatment, and (5)              failed to fully

investigate his background for mitigating factors.

       {¶34} In support of these grounds for relief, Jackson submitted affidavits from (1)

psychologist, Jolie S. Brams, Ph.D.; (2) Jackson’s brother, Joseph Jackson; (3) Jackson’s

mother, Esther Jackson; (4) Jackson’s sister, Crystal King; and (5) Jackson’s friends,

Tomorraw Graham and Johnathan Robertson.

       {¶35} Dr. Brams was contacted following Jackson’s conviction in order to review

the quality and thoroughness of the mitigation evidence presented on Jackson’s behalf.

In her affidavit and attached consultation report, Dr. Brams asserted that Dr. Fabian failed

to present a complete and relevant assessment of Jackson.        Dr. Brams averred that in

January 2011, she conducted a five hour clinical/forensic evaluation of Jackson and

reviewed a large number of Jackson’s “historical, educational, and psychological

records.”   Based on her evaluation, Dr. Brams opined that a number of factors, including

Jackson’s mood disorder, depression, paranoia, limited intellectual abilities, substance

abuse, and his previous sexual conviction, negatively impacted Jackson’s “functioning” at
the time the offenses were committed.       Dr. Brams stated that the referenced factors

“were not properly addressed during the mitigation phase” and that “the mitigation

testimony included misdiagnoses of Jackson’s mental health history and difficulties, did

not include significant diagnostic and historical information, and minimized or

misinterpreted various aspects of functioning.” Dr. Brams continued,

       as a result, the mitigation testimony presented was not informative
       regarding the realities of Jackson’s functioning, and did not lay out in a
       meaningful way for the court an understanding of the scope of Jackson’s
       deficits, and how those played a direct role in his decision making at the
       time that the offenses were committed.

Thus, Dr. Brams concluded that “this was one of the most ill-focused, disorganized, and

unmeaningful mitigation presentations that this examiner has had the opportunity to

review.”

       {¶36} Similarly, Jackson’s friends and family collectively averred that Jackson’s

drug habit and his obligation to register as a “sexual offender” as a result of a prior

conviction had a negative impact on Jackson’s mental health.        They opined that these

factors caused Jackson to act unusual and contributed to his deteriorating behavior in the

weeks leading to his crime spree.      They further expressed their disappointment with

Jackson’s representation during trial and defense counsel’s failure to present more

personal information at the mitigation hearing.

       {¶37} In denying Jackson’s petition for postconviction relief, the trial court stated,

in pertinent part:

             The court finds that grounds for relief I, II, III, and IV are not
       supported by sufficient evidence to enable the court to conclude that the
performance of trial counsel was deficient. Most of the evidence used to
support these four claims is in the trial record that was available during the
defendant’s Supreme Court appeal and to that extent, these claims at their
core are barred by res judicata as well. The court acknowledges new
evidence was presented by defendant on these claims and so it does not use
res judicata to deny relief under these claims. New and old evidence
combined was however insufficient to show entitlement to relief.

        The evidence does not show Dr. Fabian’s evaluation was
incomplete. The evidence does not show trial counsel should have moved
for a mental retardation expert. The trial court required trial counsel to
justify their decision that an Atkin’s claim would not be made and a
hearing requested. The trial court was convinced by the hearing held on
this issue that trial counsel had thoroughly considered mental retardation
and that experts dealing with defendant concurred that there was no basis
to further investigate mental retardation in this defendant. The evidence
is insufficient to convince the court that trial counsel should have sought a
substance abuse or dependence expert to prepare the defense case. The
evidence is wholly insufficient to convince the court that trial counsel
should have sought an expert in sex offender treatment to prepare the
defense case. The court has no evidence to support the repeated
references of defendant’s petition to his being classified or registered as a
sex offender in his prior Cuyahoga felony case number, CR-398540, let
alone being “improperly” classified as a sex offender “for six years” as
described in the petition and its attachments.

***

        The court finds the evidence is insufficient to support ground for
relief V. The trial record contains evidence that defendant’s brother
Joseph was in fact interviewed by Dr. Fabian. The several affidavits
submitted by defendant’s family members and friends contain no new or
remarkable information to support the conclusion that an avenue of
meaningful mitigation was not explored or, if explored, not presented on
defendant’s behalf. Brother Joseph Jackson’s affidavit confirms the trial
record to the effect that defendant did not want his family members to
testify on his behalf and that best explains why family members and friends
were not called to testify at mitigation. The trial record confirms that the
court invited defendant to introduce additional witnesses at mitigation and
assured him that there was no time constraint for the court to entertain the
testimony of any number of witnesses he might want to call. In the end,
defendant decided against calling family and friends in the mitigation.
       The court after an appropriate recorded colloquy with the defendant
       determined that this was defendant’s fully-informed and personal decision
       as to presentation of mitigation evidence.

       {¶38} On appeal, Jackson reiterates his position that defense counsel rendered

ineffective assistance of counsel during the mitigation phase of the trial by failing to fully

investigate the available mitigation evidence and by failing “to seek appropriate expert

assistance.”

       {¶39} To succeed on a claim of ineffective assistance, a defendant must establish

that counsel’s performance was deficient and that the defendant was prejudiced by the

deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). Counsel will only be considered deficient if his or her conduct fell

below an objective standard of reasonableness. Id. at 688.

       {¶40} When reviewing counsel’s performance, this court must be highly

deferential and “must indulge a strong presumption that counsel’s conduct [fell] within

the wide range of reasonable professional assistance.”          Id. at 689.     To establish

resulting prejudice, a defendant must show that the outcome of the proceedings would

have been different but for counsel’s deficient performance. Id.

       {¶41} Generally, a defense counsel’s decision as to what mitigating evidence to

present during the penalty phase of a capital trial is a matter of trial strategy. State v.

Keith, 79 Ohio St.3d 514, 530, 684 N.E.2d 47 (1997), cert. denied, 523 U.S. 1063, 118

S.Ct. 1393, 140 L.Ed.2d 652 (1998). “In many criminal cases, trial counsel’s decision

not to seek expert testimony ‘is unquestionably tactical because such an expert might
uncover evidence that further inculpates the defendant.’” State v. Krzywkowski, 8th

Dist. Cuyahoga Nos. 83599, 83842, and 84056, 2004-Ohio-5966, ¶ 22, quoting State v.

Glover, 12th Dist. Clermont No. CA2001-12-102, 2002-Ohio-6392, ¶ 95.

      {¶42} Defense counsel has a duty to investigate mitigating circumstances in order

to make informed tactical decisions about which information would be most helpful to a

client’s case. State v. Jackson, 10th Dist. Franklin No. 01AP-808, 2002-Ohio-3330, ¶

84, citing State v. Johnson, 24 Ohio St.3d 87, 90, 494 N.E.2d 1061 (1986). However,

out-of-record evidence that is merely cumulative of, or alternative to, other mitigation

evidence defense counsel presented does not provide substantive grounds for a claim of

ineffective assistance of counsel at mitigation. Combs, 100 Ohio App.3d 90, at 98, 652

N.E.2d 205. In Ohio, it is within the purview of counsel to determine whether additional

expert testimony or other information regarding a defendant’s background is cumulative

in nature. State v. Cunningham, 3d Dist. Allen No. 1-04-19, 2004-Ohio-5892, ¶ 38,

citing State v. Yarbrough, 3d Dist. Shelby No. 17-2000-10, 2001 Ohio App. LEXIS 1930

(Apr. 30, 2001), *7. To demonstrate prejudice, a petitioner must show not only that

there was mitigating evidence that counsel failed to present, but also that “there is a

reasonable probability that the evidence would have swayed the jury to impose [a lesser

sentence].” Keith at 536.

      {¶43} After careful review, we find the trial court did not abuse its discretion in

determining that Jackson failed to present sufficient evidence to enable the court to
conclude that Jackson received ineffective assistance of counsel during the mitigation

phase of trial.

       {¶44} Initially, we note that many of the ineffective assistance of counsel claims

relating to the mitigation phase of trial were previously raised and rejected in Jackson’s

direct appeal.    Specifically, Jackson argued that (1) counsel was not prepared to present

mitigating evidence, (2) counsel failed to adequately prepare Dr. Fabian so he would

address in his testimony how Jackson’s substance abuse, low intelligence, and child abuse

affected his actions on the date of the murder, and (3) counsel was ineffective by failing

to obtain a substance-abuse expert to establish the nexus between Jackson’s substance

abuse and the offenses.     In rejecting these claims, the Ohio Supreme Court provided a

detailed analysis, focusing on the extent of Dr. Fabian’s expert psychological evaluation

and Jackson’s failure to present sufficient evidence to support his allegations of deficient

performance. See Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, at ¶

211-234.

       {¶45} We recognize that Dr. Brams’s evaluation report was outside the record and,

therefore, not available during Jackson’s direct appeal.   However, we conclude that the

evidence attached to Jackson’s petition does not set forth sufficient operative facts to

establish substantive grounds for relief.

       {¶46} Regarding Dr. Brams’s opinion that Jackson’s “team did not call in experts

that would have specific knowledge of certain areas,” we find that additional expert

testimony or other information regarding Jackson’s background would have been
cumulative of, or alternative to, the testimony presented by defense counsel during the

mitigation phase of trial. The trial court’s sentencing opinion reflects that the trial court

carefully considered many of the factors Dr. Brams suggests should have been thoroughly

considered by an expert, including Dr. Fabian’s testimony concerning Jackson’s:

       (1) cognitive impairments, probable cognitive disorder and functioning in
       the borderline range of intellectual functioning, (2) history of polysubstance
       dependence and likely intoxicated state at the time of the offenses with
       substance dependency of phencyclidine, cannabis, alcohol, cocaine, and
       opioids, (3) abuse at home, including, at a minimum, harsh corporal
       physical discipline, (4) questionable self-reported sexual abuse between the
       ages of six and ten by two separate women at church, (5) witnessing
       violence in the community, including, according to Jackson, at least three
       murders, (6) growing up in a low socioeconomic community with exposure
       to possession of weapons, drug use, drug trafficking, and community
       violence, and (7) notable psychosocial stressors around the time of the
       offenses.

Jackson at ¶ 291.

       {¶47} We agree that Dr. Fabian’s testimony did not include a discussion of

Jackson’s obligation to register as a sex offender or the psychological impact that

requirement may have had on Jackson at the time of the offenses.          However, while a

“sex offense treatment” expert may have established alternative or additional mitigating

theories, we are unable to conclude that there is a reasonable probability that such expert

testimony would have swayed the three-judge panel to impose a life sentence.

       {¶48} Similarly, we find nothing in the record to suggest counsel “failed to

supervise the work of [Dr. Fabian] to ensure that a complete and valid evaluation for

intellectual disability was accomplished.”      As stated, Dr. Fabian testified at length

concerning Jackson’s various cognitive impairments and their links to Jackson’s acts of
violence.   Although Jackson contends that Dr. Fabian failed to conduct a thorough

intellectual disability (i.e., mental retardation) assessment, the testimony presented at both

the pretrial Atkins evaluation, and the mitigation hearing, establishes that Dr. Fabian

consistently opined that the information he gathered did not support a conclusion that

Jackson was intellectually disabled.       The trial court agreed, stating that it “was

convinced by the hearing held on this issue that trial counsel thoroughly considered

mental retardation and that experts dealing with defendant concurred that there was no

basis to further investigate mental retardation.”    Under these circumstances, we cannot

say counsel rendered ineffective assistance by failing to request an expert on intellectual

disabilities. As the Ohio Supreme Court noted in Jackson:

       Jackson has not claimed in these proceedings that he is, in fact, mentally
       retarded. The trial court did not conduct an Atkins hearing and never made
       a ruling that Jackson is not mentally retarded. Rather, it held a hearing so
       that the record would reflect that trial counsel had considered and diligently
       investigated the Atkins issue and justifiably decided not to pursue a claim
       that Jackson is mentally retarded. And to the extent that Jackson argues
       that trial counsel provided ineffective assistance by failing to adequately
       investigate his adaptive functioning, there is no showing that Jackson
       actually has deficits in intellectual or adaptive functioning that would prove
       mental retardation or a developmental disability, and therefore he cannot
       demonstrate prejudice on this record.

Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, at ¶ 309. Dr. Brams’s

report does not present competent evidence outside the record to persuade this court to

dispute the Ohio Supreme Court’s conclusion on this issue.

       {¶49} Regarding Jackson’s claim that counsel was ineffective for failing to obtain

a substance abuse expert, the Ohio Supreme Court has held that a defendant in a capital
case is not deprived of mitigating evidence in the form of a substance abuse expert, where

the defense presented “‘alternative devices that * * * fulfill[ed] the same functions as the

expert assistance sought [by the defendant].’” State v. Foust, 105 Ohio St.3d 137,

2004-Ohio-7006, 823 N.E.2d 836, ¶ 103, quoting State v. Jenkins, 15 Ohio St.3d 164, 473

N.E.2d 264 (1984), paragraph four of the syllabus. In this case, Dr. Fabian testified at

length during the mitigation hearing regarding Jackson’s long history of alcohol and drug

abuse and “the possible links between Jackson’s substance abuse and the offenses”

committed in this case. Based on Dr. Fabian’s testimony, having another expert testify

regarding the effect of substance abuse on Jackson would have been cumulative.

       {¶50} In addition, we find nothing in the record or the evidence attached to

Jackson’s petition to suggest Dr. Fabian’s evaluation was incomplete or that defense

counsel failed to fully investigate available mitigation evidence.       As referenced in

Jackson, defense counsel and Dr. Fabian “interviewed Jackson on numerous occasions,”

reviewed all relevant records, interviewed members of Jackson’s family, and meticulously

considered the nexus between the relevant mitigating factors and the offenses committed.

 Jackson at ¶ 216.    Although Dr. Brams believes a better job could have been done

investigating and presenting Jackson’s psychological background, she “has the benefit of

perfect hindsight, the distorting effect of which must be avoided.”   State v. Post, 32 Ohio

St.3d 380, 388, 513 N.E.2d 754 (1987) , cert. denied, 484 U.S. 1079, 98 L.Ed.2d 1023,

108 S.Ct. 1061 (1988).    “[D]efendants are not entitled to perfect mitigation hearings.”

State v. Landrum, 4th Dist. Ross No. 98 CA 2401, 1999 Ohio App. LEXIS 71, * 41
(Jan.11, 1999).     “When, as here, counsel has presented a meaningful concept of

mitigation, the existence of alternate or additional mitigation theories does not establish

ineffective assistance.”        Combs, 100 Ohio App.3d at 105, 652 N.E.2d 205 (1st

Dist.1994).

       {¶51} For these reasons, we find the trial court did not err in finding no merit to

Jackson’s first, second, third, fourth, and fifth grounds for relief.

                                2. Application of Res Judicata

       {¶52} We now address Jackson’s contention that the trial court erred in finding

that his sixth, eighth, ninth, tenth, eleventh, and twelfth grounds for relief were barred by

the doctrine of res judicata.

       {¶53} Under the doctrine of res judicata, “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.” State v. Patrick, 8th

Dist. Cuyahoga No. 99418, 2013-Ohio-5020, ¶ 7, citing Grava v. Parkman Twp., 73 Ohio

St.3d 379, 382, 653 N.E.2d 226 (1995). In order to overcome the res judicata bar, the

petitioner must show, through the use of extrinsic evidence, that he or she could not have

appealed the original constitutional claim based on the information in the original trial

record.   Combs, 100 Ohio App.3d, at 97-98, 652 N.E.2d 205. Said another way, issues

properly raised in a petition for postconviction relief are only those that could not have

been raised on direct appeal because the evidence supporting such issues is outside the

record.   State v. Milanovich, 42 Ohio St.2d 46, 50, 325 N.E.2d 540 (1975). Thus, a
trial court may dismiss a petition on the basis of res judicata if an issue was or should

have been raised on direct appeal.     State v. Dowell, 8th Dist. Cuyahoga No. 86232,

2006-Ohio-110, ¶ 10, citing Perry, 10 Ohio St.2d 175, 226 N.E.2d 104.

      {¶54} Extrinsic evidence attached to the petition does not automatically defeat the

res judicata bar.   Rather, evidence outside the record must meet “‘some threshold

standard of cogency; otherwise it would be too easy to defeat the holding of Perry by

simply attaching as exhibits evidence which is only marginally significant and does not

advance the petitioner’s claim[.]’” State v. Lawson, 103 Ohio App.3d 307, 315, 659

N.E.2d 362 (12th Dist.1995), quoting State v. Coleman, 1st Dist. Hamilton No.

C-900811, 1993 Ohio App. LEXIS 1485, * 21 (Mar. 17, 1993). Moreover, the evidence

dehors the record must not be evidence that was in existence and available for use at the

time of trial and that could and should have been submitted at trial if the defendant

wished to use it. Dowell ¶ 10.

      {¶55} In this case, grounds six, eight, nine, ten, eleven, and twelve of Jackson’s

petition argued that Jackson’s convictions and sentence are void or voidable because (6)

he was denied effective assistance of counsel in the mitigation phase of his capital trial

when counsel failed to raise the negative effect of being improperly labeled a “sex

offender” in an unrelated case on Jackson’s psychological state, (8) the death penalty “is

disproportionally meted out to those defendant’s who are racial minorities”; (9) his jury

waiver was not knowingly, voluntarily, or intelligently made; (10) he was denied the

effective assistance of counsel and due process during the trial phase of his capital trial
when “the trial court denied counsel the opportunity to effectively question Detective

Ezzo”; (11) he was denied the effective assistance of counsel and due process during the

trial phase of his capital trial when “trial counsel failed to present testimony of Reverend

Darnell Know to substantiate the claim that law enforcement promised [Jackson] that he

would not be subject to the death penalty if he cooperated”; and (12) he was denied the

effective assistance of counsel and due process during the trial phase of his capital trial

when “trial counsel failed to support the motion to suppress [Jackson’s] statement to

Detective Diaz after learning that [Jackson’s] constitutional rights were violated.”

       {¶56} As stated, the trial court found that Jackson’s sixth, eighth, ninth, tenth,

eleventh, and twelfth grounds for relief were barred by the doctrine of res judicata.    In

support of its judgment, the trial court stated as follows:

               The court finds that grounds for relief VI,VIII, IX, X, XI, [AND] XII
       are claims barred by the doctrine of res judicata. These grounds for relief
       involve issues that have already been fully litigated by defendant’s appeal to
       the Ohio Supreme Court and to the extent one could find they were not fully
       litigated there, they could have been fully litigated in that appeal. All of
       these claims are primarily supported by the trial record and not by new
       evidence which was unavailable to defendant at the time of trial. To the
       extent these grounds for relief make reference to newly discovered evidence
       introduced with the petition, the court finds the new evidence only
       marginally significant to, and supportive of, the claims made.

       {¶57} We now address the merits of these grounds for relief.

                 i. Additional Ineffective Assistance of Counsel Claims

       {¶58} Jackson’s sixth, tenth, eleventh, and twelfth grounds for relief set forth

further allegations of ineffective assistance of counsel.
      {¶59} “[I]neffective assistance of counsel ordinarily should be raised on direct

appeal.”   State v. Jones, 8th Dist. Cuyahoga No. 83601, 2004-Ohio-3868, ¶ 6.

However, “when allegations of ineffective assistance of counsel hinge on facts not

appearing in the record, the proper remedy is a petition for postconviction relief rather

than direct appeal.” State v. Curtis, 8th Dist. Cuyahoga No. 89412, 2008-Ohio-916, ¶ 8.

 Thus, to succeed on a claim of ineffective assistance of counsel in a postconviction

relief petition, a defendant must present “evidence outside the record that was not in

existence and was not available to the [defendant] in time to support a direct appeal.

The evidence submitted outside the record must be competent, relevant, and material to

the issue at hand.” (Citation omitted.) State v. Krzywkowski, 8th Dist. Cuyahoga Nos.

83599, 83842, and 84056, 2004-Ohio-5966, ¶ 11.

      {¶60} In his sixth ground for relief, Jackson argues defense counsel rendered

ineffective assistance of counsel during the mitigation phase of trial by objecting to the

prosecutor’s attempt to cross-examine Dr. Fabian about Jackson’s prior abduction

conviction. Jackson contends that “rather than objecting to any mention of [Jackson]’s

abduction case that resulted in his improper classification as a sex offender, defense

counsel should have presented this information to the panel as an explanation for

[Jackson]’s desperation for money and his psychological state.”

      {¶61} In our view, whether counsel rendered ineffective assistance by objecting to

the prosecution’s attempt to introduce evidence of Jackson’s prior abduction conviction

could fairly have been determined on direct appeal based on the information contained in
the trial record.   In this instance, Jackson’s challenge to defense counsel’s trial strategy

during Dr. Fabian’s cross-examination does not hinge on facts outside of the record.

Accordingly, we find the trial court did not err in dismissing Jackson’s sixth ground for

relief pursuant to the doctrine of res judicata.

       {¶62} In his tenth ground for relief, Jackson argues the trial court prevented

defense counsel from rendering effective assistance by preventing counsel from

questioning Detective Ezzo about his promise to Jackson’s brother, Reverend Darnell

Knox, that Jackson would not receive the death penalty if he cooperated with the police.

Similarly, Jackson argues in his eleventh ground for relief that defense counsel rendered

ineffective assistance of counsel by failing to present the testimony of Reverend Knox “to

substantiate his claim that law enforcement promised [Jackson] that he would not be

subject to the death penalty if he cooperated.”

       {¶63} In support of his tenth and eleventh grounds for relief, Jackson attached a

self-serving affidavit indicating that he would not have cooperated with the police or

made incriminating statements had the detectives not promised that he would not receive

the death penalty. In addition, Jackson relies on the affidavit of Reverend Knox, who

averred that detectives asked him to tell Jackson that he would not receive the death

penalty if he turned himself in and cooperated with their investigation.

       {¶64} In his twelfth ground for relief, Jackson argues that defense counsel

rendered ineffective assistance of counsel by failing to support his motion to suppress his

confession with evidence that the investigating detectives denied him the opportunity to
contact his attorney following his arrest. In support of his twelfth ground for relief,

Jackson again relies on a self-serving affidavit, stating that he was denied the opportunity

to contact his attorney prior to making incriminating statements to Detective Raymond

Diaz.

        {¶65} Because Jacksons tenth, eleventh, and twelfth grounds for relief rely

exclusively on conversations that occurred outside the record, the trial court erred by

concluding that res judicata barred Jackson from reasserting these specific ineffective

assistance of counsel claims.    However, a reviewing court is not authorized to reverse a

correct judgment merely because it was reached for the wrong reason.         State v. Lozier,

101 Ohio St.3d 161, 2004-Ohio-732, 803 N.E.2d 770, ¶ 46.

        {¶66} After careful review, we find the evidence attached in support of Jackson’s

tenth, eleventh, and twelfth grounds for relief failed to establish sufficient operative facts

to warrant a hearing.   As stated by the trial court:

                Grounds for relief X and XI are not supported in defendant’s
        proffered evidence. No evidence supports the conclusion that any member
        of law enforcement told defendant that he would not be subject to the death
        penalty if he did or did not do certain things. No new evidence calls into
        question the correctness of the trial court’s handling of defendant’s attempt
        to cross-examine Det. Ezzo on the subject. At trial, defense counsel did
        not represent that they possessed evidence to the contrary and therefore, the
        trial court concluded that the trial phase examination of the officer was
        merely a fishing expedition. The affidavit of defendant’s brother, Rev.
        Knox, does not identify any member of law enforcement who made such a
        statement. There are no facts upon which this court can now conclude that
        the performance of trial counsel was deficient in this regard or it in any way
        prejudiced defendant.

               Ground for relief XII is not supported by evidence. The lengthy
        transcript of defendant’s recorded statement to police after his arrest does
       not contain any request by defendant for the opportunity to talk to legal
       counsel. Defendant’s affidavit is insufficient to enable the court to
       conclude defendant was denied such a request.

       {¶67} We agree with the trial court’s conclusion that the evidence supporting

Jackson’s ineffective assistance of counsel claims fails to establish that counsel’s

performance was deficient or that Jackson was prejudiced by the alleged deficient

performance.    Initially, we note that defense counsel did, in fact, attempt to question

Det. Ezzo about any promises he made to Jackson in exchange for his cooperation.

However, the trial court prevented counsel from doing so because the available evidence

did not support the line of questioning.         Thus, Jackson’s tenth ground for relief

challenges the trial court’s evidentiary ruling and not counsel’s representation.

Nevertheless, given the lack of specificity in Reverend Knox’s affidavit, we agree with

the trial court’s determination that counsel failed to set forth a sufficient basis to impeach

Det. Ezzo about purported statements he made during the course of his investigation.

See Evid.R. 607(B) (“A questioner must have a reasonable basis for asking any question

pertaining to impeachment that implies the existence of an impeaching fact.”).             In

addition, we find defense counsel’s decision not to call Reverend Knox as a defense

witness fell within the purview of trial strategy.

       {¶68} Moreover, we find no merit to Jackson’s contention that counsel was

ineffective for failing to file a motion to suppress incriminating statements Jackson made

to Det. Diaz outside the presence of counsel.

       Failure to file a motion to suppress does not constitute per se ineffective
       assistance of counsel. Rather, the failure to file a motion to suppress
         constitutes ineffective assistance of counsel only when the record
         demonstrates that the motion would have been successful if made. Even if
         some evidence in the record supports a motion to suppress, counsel is still
         considered effective if counsel could reasonably have decided that filing a
         motion to suppress would have been a futile act.

(Citations omitted.) State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550, ¶

28.

         {¶69} In this case, Det. Diaz conducted a videotaped interview of Jackson on June

22, 2009. After waiving his Miranda rights, Jackson admitted shooting Pickryl. But

Jackson said that he had been trying to scare her and had not intended to kill her. At

trial, the panel admitted the 56-page transcript of Jackson’s recorded interview with Det.

Diaz. As noted in the trial court’s judgment entry, the transcript does not contain any

request by Jackson for the opportunity to talk to legal counsel. For these reasons, we

find counsel could reasonably have decided that filing a motion to suppress Jackson’s

statements to Det. Diaz would have been a futile act.

         {¶70} Accordingly, the trial court did not err in failing to provide a hearing on

Jackson’s tenth, eleventh, and twelfth grounds for relief.

                       ii. Proportionality of Ohio’s Death Penalty

         {¶71} With regard to his eighth ground for relief, Jackson argued that Ohio’s death

penalty law disproportionately imposes the death penalty upon minorities. Our review of

Jackson’s direct appeal reveals that the Ohio Supreme Court rejected Jackson’s claim that

Ohio’s     death   penalty is    unconstitutional.      Jackson,   141   Ohio   St.3d   171,

2014-Ohio-3707, 23 N.E.3d 1023, at ¶ 221.
       {¶72} Even assuming Jackson could bring this claim and it was not prevented by

res judicata, “[b]oth the United States Supreme Court and the Supreme Court of Ohio

have refused to accept statistics that purport to show a racial disparity in the imposition of

the death penalty as grounds for finding the death penalty to be unconstitutional.”        State

v. Steffen, 31 Ohio St.3d 111, 124, 509 N.E.2d 383 (1987), cert. denied, 485 U.S. 916,

108 S.Ct. 1089, 99 L.Ed.2d 250 (1988).          Rather than make a general showing of

disparity, a defendant “‘must show that racial considerations affected the sentencing

process in his case’” for equal protection to be implicated. Id. While Jackson has

submitted statistical information relating to the application of the death penalty to African

Americans in Ohio and Cuyahoga County, he has presented no evidence to demonstrate

that the death penalty was applied in a discriminatory manner in his case. See State v.

Frazier, 6th Dist. Lucas No. L-07-1388, 2008-Ohio-5027, ¶ 67. Accordingly, the trial

court did not err in failing to provide a hearing on Jackson’s eighth ground for relief.

                                     iii. Jury Waiver

       {¶73} In his ninth ground for relief, Jackson alleged that his jury waiver was not

knowingly or intelligently made where he was not advised of “numerous factors,”

including:

       A) That the concurrence of only three people rather than a jury of twelve
       would be necessary to convict him of the underlying charges;

       B) That the concurrence of only three people rather than a jury of twelve
       would be necessary to convict him of the death penalty specifications;

       C) That the concurrence of only three people rather than a jury of twelve
       would be necessary before he could be sentenced to death;
        D) He would be giving up his right to a two-stage sentencing process before
        a death sentence could be imposed, and replacing it with a one-step process,
        since a jury can only make a recommendation of death, and the trial judge
        must then make his own independent determination whether death is the
        appropriate penalty;

        E) That the opportunity for reversal of conviction and/or death sentence on
        appeal is greatly diminished; and

        F) That the jury waiver may be withdrawn at any time before the
        commencement of trial.

        {¶74} Jackson further argued that his waiver was not knowingly made where he

was suffering from a headache at the time of the waiver colloquy and where he relied on

trial counsel’s statement that he would not receive the death penalty if he waived a jury.

        {¶75} As acknowledged by the trial court, the Ohio Supreme Court rejected

Jackson’s contention that his jury waiver was not knowingly, voluntarily, or intelligently

made.    In doing so, the court performed a detailed and extensive review of the record

and the various arguments raised by Jackson concerning the validity of his jury waiver.

Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, at ¶ 106-116.

However, in his postconviction petition, Jackson asserts additional jury waiver arguments

that could not have been raised or fairly determined on direct appeal without resorting to

evidence outside the record.      Specifically, Jackson relies exclusively on his own

self-serving affidavit, wherein he averred that (1) defense counsel told him that he was

“in good” with the trial judge and Jackson would not get the death penalty if he waived

his right to a jury, and (2) he would not have waived his right to a jury had defense

counsel not told him he would not receive the death penalty if he tried his case before a
three-judge panel.    Because the above conversation occurred outside the record, the trial

court erred by concluding that res judicata barred Jackson from reasserting his jury waiver

claims. However, the trial court, nonetheless, did not err by dismissing the claim.

         {¶76} We note initially that as a general matter, “evidence outside the record in the

form of petitioner’s own self-serving affidavit alleging constitutional deprivation will not

compel a hearing.”          State v. Holloman, 10th Dist. Franklin No. 06AP-608,

2006-Ohio-6789, ¶ 9, citing State v. Kapper, 5 Ohio St.3d 36, 37-38, 448 N.E.2d 823

(1983). In addition, the record reflects Jackson informed the trial judge in open court

that he was waiving his right to a jury trial and signed a written waiver stating that he

voluntarily waived his right to a jury and elected to be tried by a three-judge panel.    The

waiver acknowledged that he understood that he had the right to a “jury of twelve, and

that no verdict could be made by a jury except by agreement of all twelve members of that

jury.”     The waiver stated that “no threats or promises have been made to induce me to

waive this right, and * * * I am not under the influence of any drugs, alcohol, or

medication that would affect my decision.”          See Jackson at ¶ 110.       Under these

circumstances, we find Jackson’s affidavit does not set forth sufficient operative facts to

overcome the presumption that his waiver was voluntarily, knowingly, and intelligently

made.

         {¶77} Based on the foregoing, we find the trial court did not err in dismissing

Jackson’s sixth, eighth, ninth, tenth, eleventh, and twelfth grounds for relief without a

hearing.
                                       3. Judicial Bias

       {¶78} We now address Jackson’s allegations of judicial bias. In his thirteenth

ground for relief, Jackson argues his right to a fair trial was violated “due to the judicial

bias that was displayed from the presiding judge towards trial defense counsel.”

Specifically, Jackson alleged that the trial court “repeatedly gave curt responses to

defense counsel” and “developed a personal animosity towards [defense counsel,] which

prejudiced Jackson’s right to a fair trial.”

       {¶79} In denying Jackson’s petition, the trial court stated, in pertinent part:

               As to ground for relief XIII, the court finds no evidence in the record
       that defendant was denied a fair trial due to judicial bias by the court during
       trial and mitigation proceedings and it finds no evidence in the record that
       the court had any conflict with defense counsel. The court notes, as did
       the state of Ohio in its brief, that the defendant’s proffered support for this
       claim refers to only six pages in a transcript exceeding 2000 pages. In
       addition, the court finds the record reveals only a trial court’s proper
       concern for being interrupted while on the record, interruptions being both
       unproductive and injurious to a clear transcription of the trial proceedings.

       {¶80} “It is well settled that a criminal trial before a biased judge is fundamentally

unfair and denies a defendant due process of law.” State v. LaMar, 95 Ohio St.3d 181,

2002-Ohio-2128, 767 N.E.2d 166, ¶ 34, citing Rose v. Clark, 478 U.S. 570, 577, 106

S.Ct. 3101, 92 L.Ed.2d 460 (1986).

       Judicial bias has been described as “a hostile feeling or spirit of ill will or
       undue friendship or favoritism toward one of the litigants or his attorney,
       with the formation of a fixed anticipatory judgment on the part of the judge,
       as contradistinguished from an open state of mind which will be governed
       by the law and the facts.”
State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 48, quoting State

ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph four of the

syllabus.

       {¶81} In support of his judicial bias claim, Jackson cites portions of the trial

transcript where the presiding judge advised defense counsel not to interrupt the court

while speaking on the record and admonished defense counsel for raising untimely

objections. In addition, Jackson submitted affidavits from co-defense counsel averring

that “both pretrial negotiations and trial proceedings were marred by an extraordinary

contentious relationship between the Judge and [defense counsel].”       Co-counsel further

averred that he believed the trial judge “developed a personal animosity towards [defense

counsel] during the course of pretrial and trial court proceedings.”

       {¶82} Although the trial court denied Jackson’s claims of judicial bias on

substantive grounds, we find Jackson’s allegations set forth in his thirteenth ground for

relief are barred by the doctrine of res judicata.        In our view, Jackson’s current

allegations of judicial bias could or should have been raised in his direct appeal.   In fact,

our review of Jackson reveals that the Ohio Supreme Court considered and rejected

numerous allegations of judicial bias. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707,

23 N.E.3d 1023, at ¶ 184-187. We find nothing in this record to suggest Jackson was

precluded from advancing the current allegations of judicial bias in his direct appeal.

       {¶83} Moreover, we do not accept Jackson’s position that the evidence attached in

support of his thirteenth ground for relief constituted new evidence. As stated, Jackson’s
position relies exclusively on statements made on the record during the trial proceedings

and an affidavit of co-counsel, who represented Jackson throughout the trial. Such

evidence was in existence and available at the time Jackson filed his direct appeal.

Despite Jackson’s reliance on the affidavit of his attorney, such evidence outside the

record does not preclude the application of res judicata where, as here, the judicial bias

claim could fairly have been determined on direct appeal based on the information

contained in the trial record. State v. Lewis, 8th Dist. Cuyahoga No. 73736, 1998 Ohio

App. LEXIS 5777 (Dec. 3, 1998).       See also State v. Quinones, 8th Dist. Cuyahoga No.

104016, 2016-Ohio-7225, ¶ 12 (“submitting evidence dehors the record in support of a

petition for postconviction relief does not preclude the application of res judicata if the

claim could fairly have been determined on direct appeal based on the information

contained in the trial record.”).

       {¶84} Accordingly, we find the trial court did not err by dismissing Jackson’s

thirteenth ground for relief without a hearing.

                    4. Postconviction Provides a Meaningful Review

       {¶85} In his seventh ground for relief, Jackson argued that Ohio’s postconviction

proceedings are inadequate and fail to provide meaningful review “because they allow for

little opportunity for factual development because postconviction discovery is not

permitted and, without sufficient documentation, a defendant is not entitled to an

evidentiary hearing.”
              {¶86} This court in State v. Hutton, 8th Dist. Cuyahoga No. 76348,

       2004-Ohio-3731, ¶25, 26, addressed this identical issue and held:

              A postconviction proceeding is not an appeal of a criminal conviction, but, rather,
       a collateral civil attack on the judgment. See State v. Crowder, 60 Ohio St.3d 151, 573
       N.E.2d 652 (1991). It bears emphasis that state postconviction review is not a
       constitutional right. Id. Postconviction review is a narrow remedy, since res judicata
       bars any claim that was or could have been raised at trial or on direct appeal. State v.
       Duling, 21 Ohio St.2d 13, 254 N.E.2d 670 (1970); State v. Perry, 10 Ohio St.2d 175, 226
       N.E.2d 104 (1967).

              Notwithstanding the narrow focus of the postconviction review under R.C.
       2953.21, we believe this remedy provides adequate safeguards to protect the
       constitutional rights of individuals convicted of a criminal offense.

       {¶87} Based on the foregoing precedent, the trial court did not abuse its discretion by refusing to

conduct a hearing to address the merits of Jackson’s seventh ground for relief.

                                         5. Cumulative Error

       {¶88} Finally, Jackson argues the cumulative effects of the foregoing errors and omissions

amounted to prejudicial error that deprived him of a fair trial.

              {¶89} A judgment of conviction may be reversed if the cumulative effect of errors

       deemed separately harmless is to deny the defendant a fair trial. State v. DeMarco, 31

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

       the doctrine of “cumulative error” will not provide a basis for reversal in the absence of

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

       Because Jackson failed to support his petition with evidence demonstrating multiple

       constitutional deprivations, the trial court properly denied Jackson’s argument regarding

       cumulative error. See State v. Hale, 8th Dist. Cuyahoga No. 103654, 2016-Ohio-5837.
       {¶90} Based on the foregoing, we find the trial court did not abuse its discretion in

denying Jackson’s petition for postconviction relief without a hearing. Accordingly,

Jackson’s first, third, fourth, fifth, sixth, seventh, eighth, ninth, and tenth assignments of

error are overruled.

       {¶91} Judgment affirmed.

       It is ordered that 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.



EILEEN T. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, A.J., CONCURS;
MELODY J. STEWART, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE OPINION

MELODY J. STEWART, J., CONCURRING IN PART AND DISSENTING IN PART:

       {¶92} I concur with the well-reasoned decision reached by the majority in this

case, except with regard to assignment of error No. 6. In that assigned error, Jackson

challenges the trial court’s dismissal of his claim that his waiver of a jury trial was not

knowingly, voluntarily, and intelligently made. Jackson sets forth several grounds in his

argument. However, relevant to this separate opinion is Jackson’s argument that his
waiver was not proper because he relied on his trial counsel’s assertions that he would

avoid the death penalty if he waived a jury trial. The majority properly notes that the

trial court erred in concluding that this argument was barred as res judicata, but

determines that the trial court was nonetheless correct in dismissing the claim. I disagree

with this finding.

       {¶93} In reaching the conclusion that the trial court committed no error by

dismissing this claim, the majority first references State v. Holloman, 10th Dist. Franklin

No. 06AP-608, 2006-Ohio-6789, ¶ 9, which cites to State v. Kapper, 5 Ohio St.3d 36,

37-38, 448 N.E.2d 823 (1983), for the proposition that, generally, evidence consisting of

only a petitioner’s self-serving affidavit does not require the trial court to conduct a

hearing on the matter. While Holloman does state this proposition, it does so in the

context of setting forth various reasons why a court may refuse to grant a hearing for a

postconviction petition, see id. at ¶ 8-10.      And Holloman’s citation to Kapper is

misplaced because Kapper dealt with a postconviction relief petition that set forth claims

with no supporting evidence like an affidavit. See id. at 38 (“we hold that a petition * *

* is subject to dismissal without a hearing when the record * * * indicates that the

petitioner is not entitled to relief and that the petitioner failed to submit evidentiary

documents containing sufficient operative facts.”). Such is not the case here.

       {¶94} Jackson’s affidavit specifically avers that his trial counsel told him that if he

waived a jury trial, he would not get the death penalty. This sworn statement is enough

to warrant a hearing.     There is nothing in the record to rebut Jackson’s affidavit,
including his signed waiver. Although the signed waiver was sufficient to demonstrate

that Jackson knew and understood the rights he was giving up and that no threats or

promises were made to induce him to waive his right to a jury trial, such an

acknowledgment does not account for what his trial counsel stated to him about the death

penalty if his averments are true.

       {¶95} Regarding the credibility of Jackson’s averments, the trial court did not find

that Jackson’s affidavit lacked credibility. When referencing certain grounds for relief

including the issue discussed herein, the trial court in its journal entry states, “[t]o the

extent these grounds for relief make reference to new evidence introduced with the

petition, the court finds the new evidence only marginally significant to, and not

supportive of, the claims made.”

       {¶96} Jackson’s guilt for killing Tracy Pickryl was never at issue. The defense

resources in this case, as with many capital cases, were devoted to mitigation for the

sentencing phase: to avoid the death penalty. With Jackson being sentenced to the

ultimate punishment for his crime, the claims he makes in his affidavit regarding his trial

counsel’s statements warrant a hearing. I therefore dissent from the conclusion that the

trial court properly dismissed this ground of Jackson’s petition.
