[Cite as State v. Barrow, 2020-Ohio-3719.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                              No. 108832
                 v.                                :

RICHARD BARROW,                                    :

                 Defendant-Appellant.              :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: July 16, 2020


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                               Case No. CR-13-577219-A


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Anthony T. Miranda, Assistant Prosecuting
                 Attorney, for appellee.

                 Philip E. Pitzer, for appellant.


KATHLEEN ANN KEOUGH, J.:

                   Defendant-appellant, Richard Barrow, appeals the trial court’s denial

of his untimely, successive petition for postconviction relief. For the reasons that

follow, we affirm the trial court’s decision.
              Barrow was convicted of attempted murder and having a weapon

while under disability and sentenced to nine years in prison. Barrow appealed his

convictions, challenging the manifest weight and sufficiency of the evidence; this

court affirmed. State v. Barrow, 8th Dist. Cuyahoga No. 101356, 2015-Ohio-525,

appeal not accepted, State v. Barrow, 142 Ohio St.3d 1519, 2015-Ohio-2341, 33

N.E.3d 66. Barrow subsequently moved to reopen his appeal, which this court

denied. State v. Barrow, 8th Dist. Cuyahoga No. 101356, 2015-Ohio-4579. Later,

this court affirmed the trial court’s denial of his first petition for postconviction

relief. State v. Barrow, 8th Dist. Cuyahoga No. 103331, 2016-Ohio-2839. Barrow

unsuccessfully pursued other relief through a federal habeas corpus action. Barrow

v. Lazaroff, N.D.Ohio No. 1:16CV2076, 2018 U.S. Dist. LEXIS 145414 (Aug. 3,

2018), adopted, N.D.Ohio No. 1:16CV2076, 2018 U.S. Dist. LEXIS 145421 (Aug. 27,

2018).

              In May 2019, Barrow filed a second petition for postconviction relief,

contending that new evidence demonstrates that he was not the person who shot the

victim. The new evidence attached to his petition is a September 17, 2018 affidavit

from Cheyenne Burris who averred that, contrary to trial testimony, Barrow was not

with her when she arrived at the scene of the shooting. She stated that she arrived

with a “friend” who struggled over the gun with the victim when the gun fired.

Following the state’s response, the trial court summarily denied Barrow’s petition.

              Barrow now appeals, contending in his sole assignment of error that

the trial “court erred in finding that [his] right to due process of law as guaranteed
by the Fifth and Fourteenth Amendments to the United State Constitution was not

violated by [his] continued incarceration [when he] demonstrated his innocence

through newly discovered evidence.”

              Typically, a reviewing court reviews a trial court’s decision granting

or denying a petition for postconviction relief for an abuse of discretion. State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. However,

whether the trial court possessed subject-matter jurisdiction to entertain an

untimely petition for postconviction relief is a question of law, which we review de

novo. State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351,

¶ 24.

              Barrow’s concedes that his petition for postconviction relief was

untimely and successive. However, R.C. 2953.23(A)(1) allows the trial court to

consider his untimely and successive petition if Barrow (a) was “unavoidably

prevented from discovery of the facts” upon which his claim relies or he is asserting

a claim based on a new, retroactively applicable federal or state right recognized by

the United States Supreme Court after his petition became untimely and after he

had filed earlier petitions; and (b) shows by clear and convincing evidence that no

reasonable factfinder would have found him guilty “but for constitutional error at

trial.” R.C. 2953.23(A)(1)(a)-(b).

              Because the timeliness requirement of R.C. 2953.23 is jurisdictional,

a trial court does not have jurisdiction to entertain an untimely filed petition for

postconviction relief that does not meet the exceptions set forth by R.C.
2953.23(A)(1). See State v. Kleyman, 8th Dist. Cuyahoga No. 93896, 2010-Ohio-

3612, ¶ 35.

               Barrow does not claim the existence of a new right in his petition;

accordingly, this court will only focus on whether Barrow was unavoidably

prevented from discovering Cheyenne Burris’s testimony, and whether he

established by clear and convincing evidence that no reasonable factfinder would

have found him guilty but for a cognizable constitutional error at trial.

               In this case, Barrow fails to establish that he was unavoidably

prevented from discovering Burris’s testimony. Burris states in her affidavit that

she was “afraid to come forward.” However, Barrow does not establish how Burris’s

fear of testifying in 2014 unavoidably prevented him from discovering her

testimony. She was clearly known to Barrow at the time of trial because she is the

mother of his child. Additionally, the police reports exchanged during discovery

identified Burris as a witness, and multiple witnesses testified at trial that Barrow

arrived at the scene with Burris. Additionally, at the hearing where Barrow wished

to withdraw his plea, Barrow stated that he was communicating with Burris about

the case. He could have issued a subpoena and compelled her to testify at trial.

               Even if Barrow demonstrated that he was unavoidably prevented

from discovering Burris’s testimony, he fails to establish that a constitutional error

occurred at trial. His only claim is that he is innocent of the charges. There is no

freestanding constitutional right to postconviction relief based on actual innocence.

A claim of actual innocence is not itself a constitutional claim, nor does it constitute
a substantive ground for postconviction relief. Apanovitch, 155 Ohio St.3d 358,

2018-Ohio-4744, 121 N.E.3d 351, at ¶ 26, citing Herrera v. Collins, 506 U.S. 390,

404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993); see also State v. Williams, 8th Dist.

Cuyahoga No. 85180, 2005-Ohio-3023, ¶ 31.

              Barrow contends on appeal that he is not raising an “actual

innocence” claim but rather, raising “a due process claim, arguing that the evidence

does not rise to a level beyond a reasonable doubt.” Although artfully crafted, this

court fails to see the distinction between the two claims because in essence Barrow

is contending that Burris’s affidavit proves that he was not the shooter. This

evidence, if true, would prove that Barrow is innocent. Moreover, in his petition,

Barrow contends that Burris’s affidavit is “exculpatory information” and

accordingly, he would not have been convicted. It is this court’s opinion that

Barrow’s perceived constitutional claim is one of actual innocence regardless of how

he frames the claim.

              Even if his “due process” claim satisfies the constitutional-claim

threshold, Barrow still bears the burden of demonstrating by clear and convincing

evidence that a reasonable trier of fact would not have found him guilty based on the

affidavit supporting his petition. In postconviction motions, a “trial court may

discount self-serving affidavits from the petitioner or his family members.” State v.

Stedman, 8th Dist. Cuyahoga No. 83531, 2004-Ohio-3298, ¶ 29. In this case, Burris

is the mother of Barrow’s child. Moreover, she waited over four years before coming

forward with the alleged alibi. Her statement is contradictory to testimony provided
by three witnesses at trial. Finally, in Burris’s affidavit she does not identify her

“friend” who struggled over the gun with the victim when the victim was

“accidentally shot.” Rather, she avers that “the name of the person I did have with

me is irrelevant,” but said that it was not Barrow. These statements do not rise to

the level of clear and convincing evidence when Burris fails to identify who was the

actual shooter, especially when the shooting was “accidental.”

               Accordingly, we find that the trial court did not err in denying

Barrow’s petition for postconviction relief without conducting a hearing because he

did not satisfy the jurisdictional requirements permitting the trial court to entertain

the petition. See, e.g., State v. Bates, 8th Dist. Cuyahoga No. 105766, 2017-Ohio-

8408 (when a trial court lacks jurisdiction to hear a petition under R.C.

2953.23(A)(1), it is not an abuse of discretion to not conduct an evidentiary hearing).

                  Barrow’s 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 be sent to said 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.



KATHLEEN ANN KEOUGH, JUDGE

EILEEN T. GALLAGHER, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR
