[Cite as State v. McFeeture, 2020-Ohio-801.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                       :

                Plaintiff-Appellee,                  :
                                                              No. 108434
                v.                                   :

HOLLY McFEETURE,                                     :

                Defendant-Appellant.                 :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: March 5, 2020


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                               Case No. CR-12-564265-A


                                               Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and Katherine Mullin and Anthony Thomas
                Miranda, Assistant Prosecuting Attorneys, for appellee.

                Mark A. Stanton, Cuyahoga County Public Defender, and
                Erika B. Cunliffe, Assistant Public Defender, for
                appellant.


SEAN C. GALLAGHER, P.J.:

                   Appellant Holly McFeeture appeals the decision of the trial court that

denied her petition for postconviction relief. Upon review, we affirm the trial court’s

decision.
      Background

               In 2013, a jury found appellant guilty of aggravated murder and

contaminating a substance for human consumption. The convictions arose from the

2006 death of the victim, who was her fiancé. The state’s theory was that appellant

poisoned the victim by putting antifreeze in his iced tea. The defense claimed that

the victim committed suicide.

               Prior to sentencing, appellant filed a motion for a new trial in which

she claimed the state’s failure to disclose impeachment material against one of the

state’s witnesses, Jamison Kennedy, who had been an informant in another murder

case, was in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d

215 (1963). Kennedy testified during appellant’s trial that he and appellant dated

for a time, and that appellant had confessed to him that she put something in the

victim’s drinks, he got sick, and died. After their relationship soured, there was an

incident where appellant called the police on Kennedy, and Kennedy subsequently

was charged and convicted for assaulting the officers and was sentenced to prison.

               The trial court denied appellant’s motion for a new trial. Appellant

was sentenced to life in prison with parole eligibility after serving 30 years.

               On direct appeal, appellant’s conviction was affirmed.             State v.

McFeeture, 2015-Ohio-1814, 36 N.E.3d 689 (8th Dist.). In discussing the motion

for a new trial, the court did not agree that Kennedy’s testimony was the “centerpiece

of the state’s case”; rather, it found that “the key witness in this case was the medical

examiner” who “performed the autopsy and provided extensive testimony regarding
his findings showing [the victim] died of chronic intoxication of a chemical found in

antifreeze, which ruled out suicide.” (Emphasis sic.) Id. at ¶ 126. The court also

recognized that Kennedy’s credibility had been “very aggressively attacked” at trial,

and determined “the undisclosed evidence would only furnish an additional basis to

challenge his credibility, and therefore, it would be considered cumulative, not

material.”   Id. at ¶ 127.    The court further concluded that “this undisclosed

information is not so material for Brady purposes as to give rise to a reasonable

probability that the outcome of the jury trial would have been different if the

information had been disclosed to the defense prior to trial.” Id. at ¶ 129.

               On April 25, 2014, appellant filed a petition for postconviction relief.1

Among other challenges, appellant claimed that “[t]he State failed to disclose

evidence regarding Kennedy.” Specifically, appellant argued that she was denied

her constitutional rights to due process and a fair trial “because the State failed to

comply with its affirmative disclosure obligations” pursuant to Brady, 373 U.S. 83,

83 S.Ct. 1194, 10 L.Ed.2d 215. Appellant claimed that “there is newly discovered

evidence that Kennedy lied and the State should have reasonably known that

Kennedy was giving perjured testimony.” Appellant stated that “two separate

individuals have come forward with information that Kennedy lied at trial” and

argued that “[t]his new evidence requires an evidentiary hearing[.]” Appellant

further argued that the state had “withheld information that Jamison Kennedy was



      1 Appellant’s petition was titled “First Petition to Vacate or Set Aside Judgment of
Conviction or Sentence.”
their witness and an informant in another murder trial prior to serving as a

government witness in this case.”

               Appellant attached to her petition letters from two individuals, John

Cline and Russell Newsome, both of whom claimed to have been incarcerated with

Kennedy. The letters were sent to appellant in March and April 2014. Cline called

Kennedy “a snitch” and referred to appellant as a “very pretty woman.” He indicated

that Kennedy told him “he was going to try to put you in prison” and admitted to

him that “he was gonna do whatever it took to put you in prison.” Newsome stated,

“I’m not sure what is true or not, but I’m pretty sure he lied about you” and that

“[Kennedy] said he made sure you got life.”

               On March 12, 2019, the trial court denied appellant’s petition for

postconviciton relief. The court issued findings of fact and conclusions of law. With

regard to appellant’s claim that the state committed a Brady violation, the trial court

concluded that “Petitioner has not shown that the State was in possession of these

letters, and therefore, has not shown that the State suppressed this evidence under

Brady.”   The court also found that the letters were not credible or material.

Additionally, the court concluded that the claim that the state committed a Brady

violation by failing to provide the defense with information that Kennedy had

previously been an informant in another murder trial is barred by res judicata,

noting that the exact issue had been overruled in McFeeture, 2015-Ohio-1814, 36

N.E.3d 689, at ¶ 129. The court also rejected the remaining arguments raised.
                Appellant has appealed the trial court’s denial of her petition.2

       Law and Analysis

                Under her sole assignment of error, appellant claims that the trial

court’s summary dismissal of her petition violated her right to due process. She

argues that her petition demonstrated a genuine issue of material fact sufficient to

warrant an evidentiary hearing because there was new evidence from two inmates

that supported the defense’s contention that Kennedy had committed perjury and

lied about appellant’s confession.

                “The postconviction relief process is a civil collateral attack on a

criminal judgment, in which the petitioner may present constitutional issues to the

court that would otherwise be impossible to review because the evidence supporting

the issues is not contained in the record of the petitioner’s criminal conviction.”

State v. Curry, 8th Dist. Cuyahoga No. 108088, 2019-Ohio-5338, ¶ 12, citing State

v. Calhoun, 86 Ohio St.3d 279, 281, 1999-Ohio-102, 714 N.E.2d 905, and State v.

Carter, 10th Dist. Franklin No. 13AP-4, 2013-Ohio-4058, ¶ 15. “[C]ourts are not

required to hold a hearing in every postconviction case.” State ex rel. Madsen v.

Foley Jones, 106 Ohio St.3d 178, 2005-Ohio-4381, 833 N.E.2d 291, ¶ 10 (citations

omitted). Before granting a hearing on a petition for postconviction relief, “the court

shall determine whether there are substantive grounds for relief.” R.C. 2953.21(D).

“In making such a determination, the court shall consider, in addition to the


       2Appellant subsequently filed a motion to stay the appeal because she filed a
motion for leave to file a delayed motion for new trial in the trial court. This court denied
the motion to stay.
petition, the supporting affidavits, and the documentary evidence, all the files and

records pertaining to the proceedings against the petitioner * * *.” Id.

               A trial court’s ruling on a petition for postconviction relief is reviewed

for an abuse of discretion. Curry at ¶ 15, citing State v. Gondor, 112 Ohio St.3d 377,

2006-Ohio-6679, 860 N.E.2d 77, ¶ 45. “The trial court does not abuse its discretion

in dismissing a petition without a hearing if (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 made in the petition.” Id., citing State

v. Abdussatar, 8th Dist. Cuyahoga No. 92439, 2009-Ohio-5232, ¶ 15.

               Appellant argues that the new evidence further supports her Brady

claim. In Brady, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, the United States

Supreme Court held “that the suppression by the prosecution of evidence favorable

to an accused upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.” Id. at 87. Brady is not implicated when the information “is not wholly

within the control of the prosecution.” Coe v. Bell, 161 F.3d 320, 344 (6th Cir.1998).

Further, the prosecution “is not required under Brady to furnish a defendant

evidence which, with any reasonable diligence, he can obtain for himself.” United

States v. Glass, 819 F.2d 1142, 1987 U.S.App. LEXIS 7247, 6 (6th Cir.1987), citing

United States v. Davis, 787 F.2d 1501, 1505 (11th Cir.1986) (1986).

               First, we find the trial court correctly determined that the claim that

the state committed a Brady violation by failing to provide the defense with
information that Kennedy had previously been an informant in another murder trial

is barred by res judicata. This issue was decided in McFeeture, 2015-Ohio-1814, 36

N.E.3d 689, at ¶ 129.

               Next, we find appellant has not demonstrated that any due process

violation may have occurred.       In this case, the government did not suppress

favorable evidence in violation of Brady because the state did not possess the

documents, which did not even exist at the time of trial. Also, there is nothing to

suggest that the state knowingly used false testimony to obtain a conviction. See

Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (“a State

may not knowingly use false evidence, including false testimony, to obtain a tainted

conviction* * *.”) Further, we are unable to conclude the trial court abused its

discretion in finding the statements made in the letters lacked credibility.

               Because appellant did not set forth credible operative facts to

establish substantive grounds for relief, the trial court did not abuse its discretion in

dismissing the petition without a hearing. Accordingly, appellant’s sole assignment

of error is overruled.

               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.


                                 _____
SEAN C. GALLAGHER, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
RAYMOND C. HEADEN, J., CONCUR
