from the Franklin County Court of Common Pleas C.P.C. No.
brief: Ron O'Brien, Prosecuting Attorney, Sheryl L.
Prichard, and Steven L. Taylor, for appellee.
brief: Bieser, Greer & Landis, LLP, James P. Fleisher;
Marc S. Triplett, for appellant.
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
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
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