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State v. Sheppard2/21/2001
JUDGMENT ENTRY.
This appeal, considered on the accelerated calendar under App.R. 11.1(E) and Loc.R. 12, is not controlling authority except as provided in S.Ct.R.Rep.Op. 2(G)(1).
The defendant-appellant, Bobby Sheppard, appeals the trial court's May 17, 2000, judgments that overruled his Civ.R. 60(B) motion and denied his motion to recuse. Sheppard's motion to recuse requested that the trial court remove itself from consideration of his Civ.R. 60(B) motion. Sheppard filed both motions on May 5, 2000.
Following a jury trial, the trial court convicted Sheppard of the aggravated murder and aggravated robbery of Dennis Willhide. He was also convicted of the specifications accompanying the charged offenses. The trial court imposed a sentence of death. Sheppard appealed his convictions to this court, asserting twenty-six assignments of error. This court affirmed the convictions, as did the Ohio Supreme Court.
Sheppard filed an initial petition to vacate his convictions under R.C. 2953.21 in the Hamilton County Court of Common Pleas on January 28, 1997. He filed three amended post-conviction petitions before the state filed its motion to dismiss his third amended petition. Sheppard filed a fourth amended petition after the state filed its motion to dismiss. On June 10, 1998, the state moved to strike Sheppard's fourth amended petition because he had filed it without leave of court as required under R.C. 2953.21(F). The trial court granted the state's motion to dismiss the third amended petition and its motion to strike the fourth amended petition. This court affirmed the trial court's judgments. The Ohio Supreme Court declined review on August 4, 1999.
In this appeal, Sheppard raises two assignments of error. In his first assignment of error, Sheppard contends that the trial court erred when it overruled his Civ.R. 60(B) motion for relief from the trial court's judgment dismissing his amended post-conviction petition. Sheppard contends that he did not have effective representation of appointed counsel for the preparation of his post-conviction petition.
A post-conviction proceeding is not an appeal of a criminal conviction, but, rather, a collateral civil attack on the criminal judgment. In a post-conviction proceeding, the defendant has only those rights granted by the legislature. The Revised Code requires the appointment of properly certified counsel, but does not recognize the ineffectiveness or incompetence of that appointed counsel during post-conviction petition proceedings as a ground for relief, when in a proceeding under the post-conviction statutes, in an appeal from any such proceedings, or in an application to reopen a direct appeal.
While a post-conviction proceeding is civil in nature and generally governed by the Rules of Civil Procedure, it is also a statutory creation and is controlled by the statutory procedural requirements when they conflict with the civil rules. A civil litigant in a post-conviction proceeding has no-due process right to effective assistance of counsel, even in a death-penalty case. Permitting a claim of ineffective assistance of post-conviction counsel to proceed under Civ.R. 60(B) would conflict with the prohibition of such a claim under the post-conviction statutes. Accordingly, Sheppard's first assignment of error is overruled.
In his second assignment of error, Sheppard contends that the trial court violated Canon 3(E) of the Code of Judicial Conduct when it refused to disqualify itself from consideration of the Civ.R. 60(B) motion, which claimed systematic racial and gender discrimination in selection of forepersons for all grand juries that had returned capital
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