Danny Barb,

Appellant,

vs

State of Ohio,

Appellee,.

IN THE SUPREME COURT OF.OHIQ

10-2057On Appeal from the Cuyahoga

County Court of Appeals

Eighth District Court

of AppealsCase B No.

MEMORANDUM IN SUPPORT OFJURISDICTfiUN

CM1F APP^LRANT FlAN'N1F; BARB

Danny Barb Inmate No. 540-877

2500 S. avon-beldon rd.

Crafton, Ohio 44044

Appellant, pro se

William D. Mason

Cuyahoga County Prosecutor

1200 Ontario: Street

Cleveland, Ohio 44113

Counsel for Appellee

CLERK OF COURT11SUPREME C®UR7 0F OHIO

TABLEOF CONTENTS

TABLE OF AUTHORITIES . • •

EXPLANATION OF WHY THIS CASE IS A CASE OFPUBLIC OR GREAT GENERAL INTEREST AND INVOLVESA SUBSTANTIAL CONSTITUTIONAL QUESTION

STATEMENT OF THE CASE AND FACTS

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

PROPOSITION OF LAW NO. I A THROUGH F

Was the defendant denied was right to a fairtrial before an impartial jury, and his rightagainst self-incrimination in viol,ation of theU.S. and Ohio Constitutions

PROPOSITION OF LAW NO. II

Was the defendant denied effectiveassistance of counsel in violaYion of the

•U.S. and Ohio Constitutions

PROPOSITION OF LAW NO. III

i ii

2

Was the defendant denied effective assistancebf counsel in violation of the U.S. and OhioconStitutions for failinq tocall the main witness. 7-8

PROPOSITION OF LAW NO. IV

Was the defendant denied effective assistanceof counsel in violation of the U.S. and Ohioconstitutions. Appellant also seeks review underthe plain error doctrine. • 8-9

PROPOSITION OF LAW NO. V

Was the defendant denied assistance oftrial counsel and, assistance of appellate counsel? 9-10

PROPOSITION OF LAW NO. VI

Did the trial court err by improperlydismissing Appellant's Petition for Reliefwithout conducting an Evidentiary hearing? 10

i

TABLE OF CONTENTS (Cont'd)

CONCLUSION 10

PROOF OR SERVICE . 11

APPENDIX

JOURNAL ENTRY AND OPINION Appx. pagesRELEASED AND JOURNALIZED: October 28, 2010 12

ii

TABLE OF AUTHORITIES

Leonard v. United States 378 U.S. 544

84 S.ct. 1696, 12 L. Ed. 2d 1028 (1964) ........... 2

Goverment of the Virgin Islands v.

Parrott, 551 F. 2d 553 (3d Cir 1977);

Mottram v. Murch 458 F. 2d 626, 630

(1st Cir.), rev'd on other grounds

409 U.S. 41 93 S ct. 71 34 L. Ed 2d (1972) ............ 2

SE. C.P. Ry. Co. v. Pritshav (1904)

69 Ohio St. 438, 69 N.E. 663, +

Hayes v. Smith (1900) 62 Ohio St. 161

at PP. 187+188, 56 N.E. 879

State v. Battista Not reported in

N.E. 2d 1978 WL 217528, Ohio App. 5dst.

Nov. 08, 1978 (No CA4816 CA4815

U.S. v. Carranza, C.A. 1 (Mass)

1978, 583 F. 2d 25 ............ 4

Leonard v. United States 378 U.S. 544

84 S.ct. 1696, 12 L.Ed. 2d 1028 ( 1964) ............ 4

Cleveland v. Shaffer (1996),

112 Ohio App. 3d 631, 634, 679 N.E. 2d 742 ............ 5

Smith v. Robbins ( 2000), 528 U.S. 259

120 S.ct. 746, 145 L.Ed. 2d 756 ............ 7

EXPLANATION OF WHY THIS CASE IS A CASE OF

PUBLIC OR GREAT GENERAL INTEREST AND

INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

This case concerns the Integrity of the trial court and

the State court proceedings thus far because of the Appellee's

failure to produce court documents for verification.

(Confirmation of correctness)

All request by the Appellant for his court documents where

he was in fact the named party to the cases has been questionably

denied.

The Appellant's right to effectively Appeal in pro se is

in question.

See Case No. 09-1442 and Eighth District Court of Appeals

Case No. 095005 which is still pending for some questionable

reason.

STATEMENT OF THE CASE AND FACTS

This case stems from the fact that this Petitioner was

denied Due Process at trial when there were Jurors serving on

this Petitioner's venire that had served on previous trials

in which this Petitioner was the defendant. This has caused

a violation of the United States Constitution and the Ohio

Constitution in which the Due'Process Clause and other Rights

have been violated.

On July 7th, 2008 the Defendant/Petitioner timely filed

a Petition for Post-conviction Relief^ alleging a violation

of his Right to a fair trial before an impartial jury. And,

ineffective assistance of counsel for numerous claims.

On August 31st, 2009 the Defendant/Relator was forced to

file a Mandamus asking the Eighth Appellate District Court of

Appeals to compel the trial court to rule with findings of fact

and conclusions of law in response to his Petition filed 14

months prior.

It is from that compliance that the Defendant/Petitioner

appealed in the Eighth District Court of Appeals.

The Judgment was affirmed on October 28, 2010. Released

and Journalized: October 28, 2010. Which the Defendant/Petitioner

now appeals.

1

ARGUMENT IN SUPPOR9! OF PROPOSITIONS OF LAW

PRUPOSITION OF LAW NO. I:

The Defendant was denied his ri.ght to a fair trial before

an impartial jury, and his right against self-incrimination,

in violation of the U.S. and Ohio Constitutions. A.-F.

(A). Numerous jurors on the venire were in fact jurors from

the defendant's previous trials. When the 22 veniremen entered

the courtroom the defendant immediately identified the jurors

by name and appearance. The defendant's right against self-

incrimination was at that point violated because the trial court

did not disqualify the entire panel of 22 veniremen.

"It is, of course-., well established that theexposure of a jury panel prior to trial tothe fact the defendant was convicted in aprior case requires automatic disqualificationof the entire panel. Leonard v. United States378 U.S. 544 84S,ct. 1696, 12 L. Ed. 2d 1028

(1964).

So also. a defendant has a constitutional rightnot to be tried by any juror who participatedin his conviction in a prior caseC' Goverment ofVirgin Islands v. Parrott, 551 F.2d 553 (3d Cir1977); Mottram v. Murch 458 F.2d 626, 630 (1stCir.), rev'd on other grounds 409 U.S. 41 93 SCt. 71 34 L. Ed 2d (1972).

(B). The trial court abused its discretion when it prevented

the defendant from conducting a proper voir dire.

Whatever may be the practice in other jurisdictions, it

is a long standing rule in Ohio that counsel or the defendant

begiving a reasonable opportunity to personally examine

prospective jurors.

In the case at bar the defendant recognized names on the

jury panel list and visually identified the jurors to trial

counsel for the defense, alleging a Violation of the Jury

Selection and Service Act. And/or Jury Selection Tampering.

The trial court ordered the defendant to "Shut up or she would

shut him up." Trial counsel was forced to assume the forensic

burden of unsuccessful inquiry

It seems clear such inquiry should be madeby the trial court if any be necessary,neither party should bear the forensicburden of unsuccessful inquiry. SE. C.P. Ry.Co. v. Pritshav (1904) 69 Ohio St. 438, 69N.E. 663, + Hayes v. Smith (1900) 62 OhioSt. 161 at PP.187+188, 56 N.E. 879 on thesua sponte responsibility of the trial courtto interpose and the injustice of placingthe burden on counsel tointerfere!State v. Battista Not reported in N.E. 2d1978 WL 217528, ohio App 5 dst., Nov 08, 1978(No CA4816 CA4815)

(C). The trial courtabused its discretion when it failed to

interpose and placed the burden on defense counsel to interfere.

Defense counsel was forced to ask over and over who all

has been jurors of the defendants past trials? The trial court

should have known this answer. And defense counsel should have

knew this answer also before the venire entered the courtroom.

3

(D). The trial court abusedits discretion in allowing numerous

jurors on the venire who infact did participate in the

defendant's prior trials.

Defendant has a constitutional right not tobe tried by any juror who participated inhis conviction of a prior case.U.S. v. Carranza, C.A. 1 (Mass) 1978,583 F. 2d 25.

Also see Leonard v. United States 378 U.S.544, 84 S. Ct. 1696, 12 L.Ed. 2d 1028 (1964)

See Exhibit (3) Names of veniremen.

(E). The.trial court abused its discretion for not proceeding

to a immediate evidentiary.hearing once the violation has been

bought to.the courts attention.

The-tlefendant is not a practicing attorney and cannot cite

case law procedures once a allegation of jury selection tampering

and Jury Selection and Service Act Violations have been alleged.

However, the defendant believes threatening to cuff and gag

him should not be a legal option.

(F). The defendant was denied his right to a fair trial before

a impartial jury.

These Jurors failed to answer honestly material questions

on voir dire that would have disqualified them. After numerous

jurors realized they were caught in this dishonesty they were

almost raising their hands to be excused next.

Which leads to the main issue. How they got there? Why

did they lie? Why is the trial court withholding exculpatory

evidence? Jury Selection Documents and even the verdict forms.

4

Wherefore, the trial.court did;err and the.:Eighth District

Appellate Court was wrong in affirming the lower courts,decision

stating in its ruling "Because Barb attaches no credible evidence

to support his claim, hhis.claim is deil.ied.°

When the State is. in possession of'exeulpatory evidence.

and supporting documents that the petitioner request, can the

trial eourt deny the production of said records and in the same

case at bar rule against the petitioner for not produci.ng such

evidence or documents? Zn the

can notbe.

on November

27th, 2007 allege a claim of.Juxy Selection and Service Act

interest of justice sur"ely this

The defendant/pefitioner is now and did then

violations and 3ury Selecti-on tampering

the trial court.

which.directly includes

"aithough we techically cannot.reverse acommon- pleas court_'s judgment based uponfailureto recuse,,;we can address alle-gations that a defendants`s Due-Processrights.:were violated. See, e.g.,,Clevelandv. Shaffer (1996), 112 Ohio App„ 3d 631,634, 670 N.E. 2d 742.

:ourt'-s rulina baseci: on tne .aF:ate allegeaiy

presenting documents under seal:Jis very unbeYieving: These:

court records and documents were.not sealed for over a decade.

in two cases and.9 years in the,other cases. Sealing these

doc^ment.s cannot lawfully be done now., Many Public Records

officeshave these records and documents. The State and the

trial court have acted in adeceitful manner.

Scott Thomas was on the jury panel in the case of State

v. Barb CR-92-287393 and also on the venire for case No.CR-07-

500671-A. James R. Matthews and Debra L. Walker were in fact

on the panel for case No.CR-94-318289 and were jurors bn'case

No. CR-07-500671. Richard T. Hamilton was the alternate juror

on case No. CR-92-287393, guess who was the alternate juror

for case No. CR-07-500671? That's right! Richard T. Hamilton.

Thomas D. Stanich has been on the venire for at least three

of the five trials I can remember. Linda Angart is a regular

also. There is more!

Any documents that does not state these facts in the above

paragraph that was allegedly presented "under seal" to the trial

court is FRAUD.

The Main issue here is the fact that once the trial court

realized this manipulation of the Jury Selection Process has

been alleged. The trial court should have proceeded to a

immediate hearing. Instead the trial court has attempted to

cover this illegal action up.

Again the proper procedure once a violation of the jury

selection and service act and/or jury selection tampering has

been alleged ordering the defendant to shut up and not allowing

defense counsel or the defendant to challenge the legality

of the array of veniremen on the record was abuse of discretion

by the trial court, ineffective assistance of counsel for not

seeking change of venue, or even prohibition to the,Ohio Supreme

Court.

6.

Proposition of Law N. II

Was the defendant denied effective assistance of counsel

in violation of the U.S. andOhi.o Constitutions.

The accused must be protected from all zealous State action.

In the case at hand, the trial court would not allow the defense

counsel to state on the record any rebuttal pertaining to the

erroneous fictitious journal entries entered on the docket

by the trial court. Defense counsel abetted these actions by

not seeking review from a higher court.

The defense counsel did not stop the voir dire to ensure

these jurors were not on previous trials of the defendant. This

allowed apartial jury as trier of fact on the case a.t hand.

The counsel refused to stop the arbitrary actions of the trial

court and abetted the trial courts continuance of these.

violations of the Sixth, Thirteenth, and Fourteenth Amendments

in the United States Constitution.

In the instant case at bar the Defense Counsel did not

make it past the first steps of pretrial protocol. Untruthful

Journal Entries on the docket, unqualified veniremen.on the

venire, failing to call the main witness whom the State admits

saw first hand how Richard Finley got scratched in his driveway

and what he was doing on his property.

Proposition of Law No. III

Was the defendant denied effective assistance of counsel

in violation of the U.S. and Ohio Constitutions, for failing

to call the main witness.

7

The Eighth District Court of Appeals erred in its assessment

of the facts. John Adams is a law biding citizen whom has never

been arrested or convicted of any crime. Or has JohnAdams ever

been issued a ticket or anyalcoholic offenses, surely a man

who the State classifies as a habitual drunk would have at least

one public intoxication citation.

John Adams was interviewed one time. This occured two days

after the.incident.

Simply saying John Adams was and is a drunk to discredit

him and withhold his true statement is a violation of Due Process

and a Brady violation.

Proposition ofLaw No. IV

Was the defendant denied effective assistance of counsel

in violation ofthe U.S. andOhio Constitutions. Petitioner

also seeks review under the plain error doctrine.

(A). After testimony by Robert Vaytovich that the alleged victim

serioxisly provoked the incident by initially attacking the

defendant with a baseball bat, counse.l failed and, (B). The

trial court committed plain error, by not providing a jury

instruction for a less or included offense to felonious assault.

Based on the trial courts ruling this claim should have

been raised on direct appeal establishes the fact of ineffective

assistance of appellate counsel, and mxst now be reviewed based

on the trial courts determination.

Howerver, Part (B) of this claim is when the trial court

abuses its discretion and does not follow standard procedures.

Once evidence is established on the record that proves the

8

defendant not guilty as charged in the indictment, but guilty

of a less or included offense it is plain error and a consti-

tutional violation that can be reviewed in any proceeding at

any time.

Failure to give the Jury the option to determine the degree

of guilt, or a self defense claim of innocence is a violation

of Due Process.

Proposition of Law No. V

Was the defenda[tt denied assistance of trial counsel

and, assistance of appellate counsel?

The defendant was appointed the public defender's office

as defense counsel. The trial court replaced counsel with counsel

with counsel of her choosing. The defendant was not giving any

opportunity to waive any conflict of interest claim. All defense

strategy was reviewed with Chris Mauer of the public defender's

office. Counsel Jaye Schlachet abetted the trial courts zealous

actions and at different times assisted the prosecution with

how to proceed. The prosecution and all State witnesses were

allowed to change their stories and the trial court told the

Jury that was O.K. as long as everyone has the same story now.

Because defense counsel revealed trial strategy to the

prosecution the State was allowed to change its case andhow

it allegedly happened. The defendant was not provided counsel

for the defense.

9

The trial court appointed appellate counsel that admits

being on retainer from the presiding Judge for the past four

years and has done appeals where no claims of abuse of discretion

or any claims against the trial court-were presented. That should

have been presented. See Exhibit A & B of appellants brief

filed in the Eighth District Court of Appeals.

Proposition of Law No. VI

Did the trial court err by improperly dismissing Appeilant's

Petition.for Post Conviction Relief without conducting an

Evidentiary hearing?

In this instant matter the Judge that reviewed the petition

is also the Judge that presided at the trial, and also the main

participant in the Jury Selection Violations.

The interest of justice demands a evidentiary hearing to

see what documents the trial court allegedly reviewed and who

supplied this allegedly accurate documents for review.

CONCLUSION

Wherfore, in the interest of justice, the Appellant

respectfully request that this'Court will find fferit in this

cause and reverse and remand this case back to the trial court

with specific instructions not contrary to Law.

10

CERTIFICATE OF SERVICE

I certify a copy of the foregoing NOTICE OF APPEAL with

MEMORANDUM IN SUPPORT OF JURISDICTION has been sent by regular

U.S. Mail to the office of the Cuyahoga County Prosecutor,

1200 Ontario Street. Cleveland, Ohio 44113, on this 24th, day

of November, 2010.

Respectfully Submitted,

Danny Bar i pro se2500 S. av -beldon rd.Grafton, Ohio 44044

11

"VtCourt ot Rppeat'5 oEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 94054

STATE OF OHIO

b to

PLAINTIFF-APPELLEE

vs.

I)AlVNYBAII;B

DEFENDANT-APPELLANT

JUDGMENT:AFFIRMED

Civil Appeal from theCuyahoga County Court of Common Pleas

Case No; CR-500671-A

BEFORE: Boyle, J., Kilbane, P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: October 28, 2010

FOR APPELLANT

Danny Barb, pro seInmate No. 540-877Grafton Correctional Institution2500 S. Avon-Beldon RoadGrafton, Ohio 44044

ATTORNEYS FOR APPELLEE

William D. MasonCuyahoga County ProsecutorBY: Katherine MullinAssistant County ProsecutorThe Justice Center, 8t'' Floor1200 Ontario StreetCleveland, Ohio 44113

FILED ANDjO1,sRNAL3ZED22(0)^ ,M ^^

MARY J. BOYLE, J.:

Appellant, Danny Barb, appeals the denial of his petition for

postconviction relief, arguing that he was denied a fair trial before an impartial

jury and that he received ineffective assistance of counsel. We affirm.

Procedural History and Facts

Barb was charged with one count of domestic violence and one count of

felonious assault. The felonious assault charge carried a notice of prior

-conviction and a repeat violent offender specification. The charges arose out of

Barb's alleged involvement in an argument with L.S. while the two were in a van

parked in a neighbor's driveway. L.S. testified that Barb struck her several

times, then retrieved a hammer from his tool belt on the floor of the van. L.S.'s

son, Richard Finley, approached the van. Barb allegedly got out of the van and

struck Finley in the head with the hammer.

At the conclusion of trial, the jury found Barb not guilty of domestic

violence but guilty of felonious assault. As for the specifications attached to the

felonious assault count, which were bifurcated and tried to the court, Barb was

found to have a prior conviction for burglary and to be a repeat violent offender.

The court subsequently sentenced him to eight years in prison.

This court upheld Barb's conviction and sentence in his direct appeal, and

the Ohio Supreme Court declined to accept jurisdiction for further review. See

_2_

State u. Barb, 8th Dist. No. 90768, 2008-Ohio-5877, and State U. Barb, 121 Ohio

St.3d 1428; 2009-Ohio-1296, 903 N.E.2d 326.

While his appeal was pending, Barb filed a petition for postconviction

relief, asserting four grounds as to why his conviction should be vacated: (1) he

was denied a fair trial because jurors from his prior cases served as jurors in the

underlying case; (2) his trial counsel was ineffective in failing to request jury

panel lists from previous trials to prove his claim; (3) his trial counsel was

ineffective in failing to call a key witness, namely, John Adams, who would have

rebutted the state's evidence supporting the felonious assault charge; and (4) his

trial counsel was ineffective and the trial court committed plain error by not

instructing the jury on the lesser-included offense of aggravated assault. In

support of his petition, Barb attached his own affidavit, the affidavit of his

brother, and a Cleveland Police Department incident report.

The state opposed Barb's petition, arguing that Barb failed to present any

credible evidence to warrant an evidentiary hearing, that his claims lacked

merit, and that the doctrine of res judicata barred some of his claims. The state

also submitted proposed findings of fact and conclusions of law. The trial court

subsequently denied Barb's petition and adopted the state's findings of fact and

conclusions of law. From this decision, Barb appeals, raising six assignments of

error.

-3-

Law and Analysis

A postconviction proceeding is not an appeal of a criminal conviction, but

a collateral civil attack on a criminal judgment. State v. Steffen (1994), 70 Ohio

St.3d 399, 410, 639 N.E.2d 67. And postconviction review is a narrow remedy

because res judicata bars 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, 254

N.E.2d 670; State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104.

To prevail on a postconviction claim, the petitioner must demonstrate a

denial or infringement of his or her rights in the proceedings resulting in his or

her conviction that rendered the conviction void or voidable under the Ohio

Constitution or the United States Constitution. State v. Leonard, 157 Ohio

App.3d 653, 2004-Ohio-3323, 813 N.E.2d 50, ¶7, citing R.C. 2953.21(A)(1). The

petitioner bears the initial burden of demonstrating, through the petition and

any supporting affidavits and the files and records of the case, "substantive

grounds for relief." State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, 714

N.E.2d 905, paragraph two of the syllabus. If the petitioner fails to meet this

burden, the court may dismiss the petition without an evidentiary hearing. R.C.

2953.21(C).

In regard to a petition for postconviction relief, which asserts ineffective

assistance of counsel, the petitioner'sburden specifically requires the submission

-4-

of evidentiary documents "containing sufficient operative facts to demonstrate

the lack of competent counsel and that the defense was prejudiced by counsel's

ineffectiveness." State v. Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819,

syllabus. A petitioner cannot rely upon general conclusory allegations that his

or her trial counsel rendered ineffective assistance; instead, the petitioner must

demonstrate that there is evidence outside the record to support an ineffective

assistance of counsel claim. Id. Otherwise, the petition may be dismissed on the

grounds of res judicata. State v. Cole (1982), 2 Ohio St.3d 112, 114, 443 N.E.2d

169.

We review a trial court's denial of a petition for postconviction relief under

an abuse of discretion standard. State u. Williams, 165 Ohio App.3d 594,

2006-Ohio-617, 847 N.E.2d 495, ¶20.

With these principles in mind, we turn to Barb's assignments of error.

Impartial Jury and Jury Lists

In his first assignment of error, Barb argues that he "was denied his right

to a fair trial before an impartial jury and his right against self-incrimination in

violation of the U.S. and Ohio constitutions." He raises the same argument that

he raised in his petition, i.e., that many of the jurors who served in the

underlying case had previously served as jurors in his other criminal cases. To

the extent that the trial court found that Barb failed to attach any credible

- 5 -

evidence to support this argument, thereby affording no credence to his self-

serving affidavit, he contends that the trial court refused to provide him with the

jury lists, which would have proven his claim. He likewise argues in his second

assignment of error that his trial counsel was ineffective for failing to obtain

these jury lists to substantiate his claim that these same jurors should have been

excluded from the instant case.

But the record reveals that the state submitted the jury lists under seal

and requested the trial court to conduct an in-camera review. The trial court

conducted an in-camera review and determined that "no juror in Barb's previous

trials served as jurors in this case." Our review of the record supports this

conclusion. Accordingly, Barb's first assignment of error has no merit and is

overruled.

Additionally, having found that there is no merit to Barb's claim that there

were jurors from his earlier criminal trials that served on this case, we likewise

cannot say that the trial court abused its discretion in summarily disregarding

his claim that his trial counsel was ineffective for failing to obtain the jury lists.

The second assignment of error is overruled.

Eyewitness Testimony

In his third assignment of error, Barb argues that the trial court erred in

not finding any merit to his claim that his trial counsel was ineffective in failing

-6-

to call a purported key eyewitness at trial, John Adams (a.k.a. Iohn Adams).

Barb contends that Adams would have rebutted Finley's testimony by testifying

that Barb did not assault Finley, that Barb did not have a hammer in his

possession, and that Finley actually assaulted him and Barb.

The record reveals, however, that Barb did not attach an affidavit from

Adams in support o€this argument. Instead, Barb attached an affidavit of his

brother and relied on his own affidavit. The trial court afforded little evidentiary

value to these affidavits, which under the circumstances, we cannot say

constitutes an abuse of discretion. As explained by the Second District:

"Although due deference should be given to submitted affidavits, a trial

court has some discretion to judge their credibility when deciding if the affidavits

should be accepted as true statements of fact. [Calhoun, 86 Ohio St.3d at 284.]

In judging the credibility of an affidavit, the trial court should consider relevant

factors such as: `(1) whether the judge reviewing the postconviction relie€petition

also presided at the trial, (2) whether multiple affidavits contain nearly identical

language, or otherwise appear to have been drafted by the same person, (3)

whether the affidavits contain or rely on hearsay, (4) whether the affiants are

relatives of the petitioner * * *, and (5) whether the affidavits contradict

evidence proffered by the defense at trial.' [Id. at 285.] `[O]ne or more of these

or other factors may be sufficient to justify the conclusion that an affidavit

-7 -

asserting information outside the record lacks credibility.' Id." State v. Brown,

2d Dist, No. 19776, 2003-Ohio-5738, ¶19.

Here, nearly all of these factors support the trial court's decision to afford

the affidavits little, if any, evidentiary value. See, also, State v. Kapper (1983),

5 Ohio St.3d 36, 448 N.E.2d 823; State v. Ismail (1981), 67 Ohio St.2d 16, 423

N.E.2d 1068 (petitioner's own self-serving declarations would be insufficient to

entitle him to postconviction relief). Barb's argumentthat Adams would have

rebutted the state's case is merely speculative. And Barb failed to present

sufficient evidence outside of the record to rebut the witnesses who testified at

trial. Accordingly, Barb's argument fails based on his failure to produce

sufficient operative facts demonstrating substantive grounds for relief on this

particular allegation of ineffectiveness. See State v. Zuber (June 26, 1998), 11th

Dist. No. 97-L-061 (rejecting petitioner's claim of ineffective assistance of counsel

based on alleged failure to call certain eyewitnesses when petitioner failed to

attach eyewitnesses' affidavits and relied solely on own self-serving affidavit and

affidavit of a relative).

Moreover, as for the partial police incident report that Barb attached in

support of this claim, the report identifies a highly intoxicated male who stated

that Barb did not start the fight and that Finley struck Barb. Barb claims that

this individual is Adams. But the police's follow-up report indicates that this

-8-

same individual was again highly intoxicated upon follow-up questioning (two

days later) and that this individual did not see what happened at the beginning

of the fight. And according to the state, Adams's testimony, at best, would

merely be duplicative of the testimony offered by another defense witness who

testified in Barb's behalf at trial. Under such circumstances, we cannot say that

Barb's trial counsel was ineffective in refusing to call a witness who was highly

intoxicated at the time of the incident and whose testimony would only be

duplicative of another defense witness.

The third assignment of error is overruled.

Lesser-Included Offense Instruction

Barb argues in his fourth assignment of error that he was denied effective

assistance of counsel because his trial counsel failed to request a lesser-included

offense instruction to felonious assault based on the evidence presented at trial.

He further argues that the trial court's failure to give such an instruction

constitutes plain error. Barb's argument lacks merit because it is barred under

the doctrine of res judicata.

If appellate counsel is different than trial counsel, as is true in this case,

then the issue of ineffective assistance of trial counsel must be raised on direct

appeal when the grounds for the ineffectiveness is not based on "new, competent,

relevant and material evidence dehors the record." State v. Cowan, 151 Ohio

-9-

App.3d 228, 2002-Ohio-7271, 783 N.E.2d 955, ¶15; see, also Perry, 10 Ohio St.2d

175, paragraph nine of the syllabus. Failure to raise the issue of ineffective

assistance of trial counsel in the direct appeal renders the issue res judicata for

purposes of postconviction relief. Cole, supra, at syllabus. Indeed, it is well

settled that claims that trial counsel should have sought a lesser-included

offense instruction could have been raised at trial or on appeal and, therefore,

are barred by the doctrine of res judicata in a postconviction relief proceeding.

State v. Williams, 7th Dist. No. 071VIA57, 2008-Ohio-1187; State V. Tenace, 6th

Dist. No. L-05-1041, 2006-Ohio-1226, ¶32.

Moreover, we note that failure to request instructions on lesser-included

offenses is a matter of trial strategy and does not establish ineffective assistance

of counsel. State v. Clayton (1980), 62 Ohio St.2d 45, 402 N.E.2d 1189, certiorari

denied (1980), 449 U.S. 879, 101 S.Ct. 227, 66 L.Ed.2d 102.

The fourth assignment of error is overruled.

Choice of Counsel

In his fifth assignment of error, Barb broadly states that he "was denied

assistance of trial counsel, and assistance of appellant counsel." The grounds for

this assignment of error, however, are not entirely clear. He argues that he was

denied "the opportunity to waive any conflict of interest claim" with respect to

his counsel. Aside from failing to comply with App.R. 16, Barb raises this

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argument for the first time on appeal; he did not raise it below in his petition for

postconviction relief. Accordingly, we summarily overrule this assignment of

error because Barb has waived it. See State v. McKee (Oct. 1, 1997), 9th Dist.

No. 96CA006599 (failure to raise issue in petition for postconviction relief results

in a waiver of the right to assert the issue on appeal).

Evidentiary Hearing

In his final assignment of error, Barb argues that the trial court erred by

denying his petition without conducting an evidentiary hearing. But as already

discussed above, Barb failed to satisfy his burden and present supporting

evidentiary documents sufficient to demonstrate the existence of operative facts

supporting an entitlement to relief. Consequently, the trial court acted within

its authority by dismissing Barb's postconviction petition without a hearing.

Jackson, 64 Ohio St.2d 107, at syllabus; State v. Williams, 162 Ohio App.3d 55,

2005-Ohio-3366, 832 N.E.2d 783, ¶23.

The sixth assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover of 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.

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A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Pro

MARY EILEEN KILBANE, P.J., andPATRICIA ANN BLACKMON, J., CONCUR