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State v. Conway

Court of Appeals of Ohio, Tenth District

June 6, 2019

State of Ohio, Plaintiff-Appellee,
v.
James T. Conway, III, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 02CR-3117

          On brief: Ron O'Brien, Prosecuting Attorney, Sheryl L. Prichard, and Steven L. Taylor, for appellee.

          On brief: Bieser, Greer & Landis, LLP, James P. Fleisher; Marc S. Triplett, for appellant.

          DECISION

          BROWN, J.

         {¶ 1} Defendant-appellant, James T. Conway, III, filed a third petition for post-conviction relief in the Franklin County Court of Common Pleas seeking relief from his conviction and sentence of death for the murder of Andrew Dotson. After the trial court dismissed the petition, Conway appealed. For the reasons set forth below, we affirm the judgment of the trial court. In addition, we render moot plaintiff-appellee, the State of Ohio's, pending motion for expedited consideration.

         {¶ 2} On September 14, 2001, Conway shot and wounded Jesse James at an intersection on the west side of Columbus. Dotson was present at the shooting. Conway asked several of his friends to kill Dotson. Although they initially agreed and drove Dotson to West Virginia to kill him there, they were unable to commit the act and returned to Columbus. Conway then killed Dotson himself with a pickaxe and left his body in a cornfield. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 1-9 ("Conway I").

         {¶ 3} A grand jury indicted Conway on one count of aggravated murder under R.C. 2903.01, one count of kidnapping under R.C. 2905.01, one count of possession of criminal tools under R.C. 2923.24, one count of abuse of a corpse under R.C. 2927.01, one count of obstructing justice under R.C. 2921.32, and one count of tampering with evidence under R.C. 2921.12. Id. at ¶ 20. The aggravated murder charge carried three death penalty specifications. The specifications alleged the murder was committed for the purpose of escaping detection, apprehension, trial, or punishment for another offense under R.C. 2929.04(A)(3); that the offense was committed during a kidnapping under R.C. 2929.04(A)(7); and that the victim was a witness to an offense who was purposely killed to prevent the victim from testifying in a criminal proceeding under R.C. 2929.04(A)(8). Id. at ¶ 21.

         {¶ 4} A jury found Conway guilty of all the charges as well as the death penalty specifications and, after a penalty hearing, recommended the death sentence. The trial court merged the kidnapping conviction into the aggravated murder conviction and sentenced Conway to death on October 8, 2003. He received an aggregate sentence of 12 years imprisonment for the other offenses. Id. at ¶ 29. After a direct appeal, the Supreme Court of Ohio affirmed the convictions and the death sentence on June 21, 2006. Id. At ¶ 157.

         {¶ 5} Conway has filed three petitions for post-conviction relief under R.C. 2953.21. He asserted 20 claims of constitutional violations in the first petition, which the trial court denied. On appeal, Conway asserted the trial court erred by denying his requests for discovery, the appointment of attorneys for the appeal, and funding to retain expert witnesses. He also asserted the trial court erred by applying res judicata to his claims and by denying him relief. We affirmed the trial court's denial of the petition on November 28, 2006. State v. Conway, 10th Dist. No. 05AP-550, 2006-Ohio-6219 ("Conway II ").

         {¶ 6} After filing a petition for a writ of habeas corpus in federal district court, Conway was granted leave to conduct discovery on April 8, 2009. Conway v. Houk, S.D.Ohio No. 3:07-cv-345 (Apr. 8, 2009). With the evidence obtained from those discovery proceedings, Conway filed a second petition for post-conviction relief on November 2, 2011. The trial court denied the petition. On appeal, Conway argued the trial court had erred when it dismissed his claims that the state had suppressed exculpatory evidence and that he had received ineffective assistance of counsel due to his original trial attorney's conflicts of interest. He also asserted the trial court erred by denying his motions for discovery and appointment of counsel, and he brought facial and as-applied challenges to R.C. 2953.23(A), the statute governing successive petitions for post-conviction relief. We gave Conway "the benefit of the doubt" that he was unavoidably prevented from obtaining discovery documents he relied on to argue that new facts allowed review of his successive petition under R.C. 2953.23(A)(1), but rejected his arguments on their merits and affirmed the trial court's dismissal of the petition. State v. Conway, 10th Dist. No. 12AP-412, 2013-Ohio-3741, ¶ 18 ("Conway III ").

         {¶ 7} Conway filed a third petition for post-conviction relief on March 19, 2013. He originally filed the petition pro se and attached nearly 1, 600 pages of documents as exhibits. Conway unsuccessfully moved the trial court to appoint counsel to represent him. However, the federal court hearing his habeas corpus petition appointed counsel and, with their assistance, Conway filed an amended petition for post-conviction relief on January 4, 2016. He presented nine grounds for relief to the trial court that addressed three areas of alleged constitutional injury: (1) the constitutionality of Ohio's post-conviction relief statute, R.C. 2953.23(A), (2) ineffective assistance of trial counsel, and (3) ineffective assistance of his first post-conviction counsel.

         {¶ 8} The trial court rejected Conway's constitutional challenge to the post-conviction relief statute and ruled his claims were barred by res judicata. However, the trial court did address the merits of Conway's arguments and concluded he was not entitled to relief because he had "failed to present sufficient evidence demonstrating that but for trial counsel's allegedly deficient performance the result of the trial proceedings would have been different." (June 13, 2017 Decision & Entry at 11.) The trial court also rejected Conway's claim concerning the alleged ineffective assistance of his initial post-conviction counsel on the grounds the Sixth Amendment right to counsel does not apply in post-conviction proceedings. Accordingly, the trial court denied Conway's petition and denied as moot his pending motions requesting leave to conduct discovery and funding for an expert witness.

         {¶ 9} Conway has appealed and asserts the following six assignments of error:

[I.] THE TRIAL COURT ERRED WHEN IT DID NOT DECLARE THE CLEAR AND CONVINCING BURDEN OF PROOF CONTAINED IN R.C. 2953.23(A)(1)(b) CONSTITUTIONALLY INFIRM ON ITS FACE AND AS APPLIED TO CONWAY.
[II.] THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED THE STATE'S MOTION TO DISMISS THE FIRST GROUND FOR RELIEF AND DENIED CONWAY RELIEF.
[III.] THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED CONWAYS MOTIONS FOR DISCOVERY.
[IV.] THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED CONWAY'S MOTION FOR FUNDING.
[V.] THE TRIAL COURT ERRED WHEN IT GRANTED THE STATE'S MOTION TO DISMISS THE SECOND TO EIGHTH GROUNDS FOR * * * RELIEF AND DENIED CONWAY FACTUAL DEVELOPMENT AND RELIEF.
[VI.] THE TRIAL COURT ERRED WHEN IT GRANTED THE STATE'S MOTION TO DISMISS THE NINTH GROUND FOR RELIEF AND DENIED CONWAY ...

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