State v. Apanovitch
| Citation | 107 Ohio App.3d 82,667 N.E.2d 1041 |
| Decision Date | 30 November 1995 |
| Docket Number | No. 68742,68742 |
| Parties | The STATE of Ohio, Appellee, v. APANOVITCH, Appellant. * |
| Court | United States Court of Appeals (Ohio) |
Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, Christopher L. Frey and John W. Monroe, Assistant Prosecuting Attorneys, Cleveland, for appellee.
David H. Bodiker, Ohio Public Defender, Dale A. Baich and John B. Heasley, Assistant Public Defenders; Berkman, Gordon, Murray, Palda & Devan and Mark R. Devan, Cleveland, Freedman & Bornstein and Alan Freedman, Chicago, IL, for appellant.
Petitioner Anthony C. Apanovitch stands convicted and sentenced to death for aggravated murder, aggravated burglary, and rape of Mary Ann Flynn. His convictions and sentences were affirmed by this court and the Supreme Court of Ohio. See State v. Apanovitch (1987), 33 Ohio St.3d 19, 514 N.E.2d 394.
This is Apanovitch's second petition for postconviction relief, filed pursuant to R.C. 2953.23(A). We affirmed the dismissal of his first petition, finding his twelve assigned errors raised claims that were alternately barred by principles of res judicata or the failure to support those claims with newly discovered evidence. See State v. Apanovitch (1991), 70 Ohio App.3d 758, 591 N.E.2d 1374, motion to certify record overruled (1991), 61 Ohio St.3d 1418, 574 N.E.2d 1089.
Apanovitch then sought a writ of habeas corpus in a petition filed with the United States District Court for the Northern District of Ohio. The petition set forth twenty-four separate substantive and procedural grounds for the writ. The district court issued an order and memorandum opinion dismissing the petition in its entirety. Apanovitch appealed to the United States Court of Appeals for the Sixth Circuit. Subsequently, he asked the court to stay proceedings because he had filed the present successor petition for postconviction relief in the court of common pleas. The Sixth Circuit granted his motion and ordered the appeal held in abeyance until final disposition of the state proceedings.
The successor petition, amended three times, sets forth a total of eleven claims for relief. These claims are based upon newly discovered evidence derived from the production of a homicide file compiled by the Cleveland Police Department and obtained pursuant to a public records request. See State ex rel. Apanovitch v. Cleveland (Feb. 6, 1991), Cuyahoga App. No. 58867, unreported, 1991 WL 18676, affirmed sub nom. State ex rel. Williams v. Cleveland (1992), 64 Ohio St.3d 544, 597 N.E.2d 147. They are:
1. The state failed to provide relevant discovery information which was generated by the Cleveland Police Department during the scope of its investigation.
2. An improperly constituted jury returned Apanovitch's indictment for aggravated murder and aggravated robbery.
3. The state failed to provide counsel for Apanovitch with all information related to the allegations in the possession and control of the Cleveland Police Department.
4. The state failed to provide Apanovitch's counsel with all information related to the allegations in the possession and control of the state of Ohio.
5. Apanovitch was denied effective assistance of counsel when the state of Ohio denied him access to information material to the guilt phase of trial.
6. The prosecution engaged in misconduct by failing to make material and favorable evidence available prior to trial.
7. Apanovitch's convictions and sentences are void or voidable because the prosecutor withheld material and favorable information from Apanovitch.
8. The state failed to fully disclose the details of a deal offered to witness Howard Hammond, who was to testify that he overheard Apanovitch admit the charged offenses.
9. The state improperly insinuated before the jury that witness Hammond recanted his allegation that he overheard Apanovitch admit the charged offenses as a result of intimidation by another prison inmate.
10. Governmental action interfered with and prevented Apanovitch from raising state and federal constitutional claims and issues at trial, on direct appeal and federal habeas corpus proceedings.
11. The state used perjured, misleading, inaccurate, or unreliable statements at trial.
The trial court dismissed the successor petition. In its findings of fact and conclusions of law, the court noted that principles of res judicata apply between federal and state court decisions. Having reviewed the district court's memorandum opinion, the trial court found that because the district court had "reviewed the exact issues raised by Apanovitch's Claims for Relief Nos. 1, 3, 4, 5, 6, 7, 8, and 11, they are barred by the doctrine of res judicata." The trial court also found that Apanovitch was precluded from raising claims 2 and 9, since they could have been raised on direct appeal. Finally, the trial court found that claim 10 failed to state any specific claim for which relief could be granted.
We begin with the second assignment of error:
"The trial court erred in determining that Apanovitch's successor post-conviction claims were barred by res judicata, thus violating appellant's rights under the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Article I, Sections 1, 2, 9, 10, 16, and 20 of the Ohio Constitution."
Apanovitch claims the trial court erred by determining that the claims raised in the successor petition were barred by res judicata because the district court addressed the same claims in the habeas corpus petition.
R.C. 2953.23(A) permits, but does not require, the court to entertain a second or successive petition for similar relief based upon the same facts or on newly discovered evidence. Since a postconviction proceeding is a collateral civil attack on a judgment, the trial court has the same discretion to deny relief as in any other civil postjudgment motion. See State v. Steffen (1994), 70 Ohio St.3d 399, 410, 639 N.E.2d 67, 75-76. Principles of res judicata bar the assertion of any claim that was or could have been raised at trial or on direct appeal. Id., citing State v. Duling (1970), 21 Ohio St.2d 13, 50 O.O.2d 40, 254 N.E.2d 670; State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, paragraph nine of the syllabus. To invoke discretionary relief, Apanovitch must show that " 'some objective factor external to the defense impeded counsel's efforts' to raise the claim" in his prior petition. McCleskey v. Zant (1991), 499 U.S. 467, 493, 111 S.Ct. 1454, 1469-1470, 113 L.Ed.2d 517, 544. Additionally, Apanovitch must show actual prejudice flowing therefrom.
This appeal comes to us under unusual circumstances. The district court heard the petition for habeas corpus before Apanovitch had raised the same claims in the state courts.
Addressing the habeas corpus petition, the district court stated:
The remaining four claims related to (1) information indicating other individuals were suspects in Flynn's rape and murder; (2) the state's withholding of information proving that the hair of unknown origin could only belong to the murderer; (3) the state's failure to disclose that three witnesses did not observe scratches on Apanovitch's face; and (4) the state's withholding of information indicating the victim died between 11:30 and midnight. The district court found no evidence to show that any of these alleged Brady violations were unknown to Apanovitch prior to the expansion of the record. Moreover, the district court noted that Apanovitch made no showing that any of these charges provided new evidence not already considered by the jury.
We find that the trial court properly relied on the district court opinion to find that the claims in the successor petition had been previously determined and that res judicata required dismissal. R.C. 2953.23 provides:
"(A) Whether a hearing is or is not held, the court may, in its discretion and for good cause shown, entertain a second petition or successive petitions for similar relief on behalf of the petitioner based upon the same facts or on newly discovered evidence."
Apanovitch admits he raised the same issues in the successor petition that he raised in the habeas corpus petition. These claims were litigated in the federal court, so res judicata applies, Rogers v. Whitehall (1986), 25 Ohio St.3d 67, 25 OBR 89, 494 N.E.2d 1387, syllabus, and the court of common pleas could accept the district court's findings as a basis for summarily dismissing the petition.
We are aware the Ninth Appellate District has recently held "that prior post-conviction relief petitions cannot act as res judicata for later petitions in the same case * * *." See State v. McMinn (May 3, 1995), Medina App. No. 2373-M, unreported, 1995 WL 256174. The court found that the discretion afforded trial courts to hear successor petitions based upon the same facts under R.C. 2953.23(A) is inconsistent with the complete bar presented by res judicata.
We disagree with McMinn because we believe it misconstrues the purpose of R.C. 2953.23. It should be...
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