[Cite as State v. Shabazz, 2024-Ohio-345.]
[Please see vacated opinion at 2023-Ohio-2775.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 112140 v. :
JAMIL A. SHABAZZ, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: February 1, 2024
Criminal Appeal from the Cuyahoga County Common Pleas Court Case No. CR-07-495551-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kristen Hatcher, Assistant Prosecuting Attorney, for appellee.
Jamil A. Shabazz, pro se. ON RECONSIDERATION1
ANITA LASTER MAYS, P.J.:
{¶1} Plaintiff-appellee, the state of Ohio (“the state”), moves this court,
pursuant to App.R. 26(A)(1), to reconsider our decision in the State v. Shabazz,
8th Dist. Cuyahoga No. 112140, 2023-Ohio-2775, which we issued on August 10,
2023.
{¶2} App.R. 26 does not provide specific guidelines to be used by an
appellate court when determining whether a decision should be reconsidered or
modified.
In determining whether to grant a motion for reconsideration filed pursuant to App.R. 26(A)(1)(a), the test “‘is whether the motion calls to the attention of the court an obvious error in its decision or raises an issue for our consideration that was either not considered at all or was not fully considered by [the court] when it should have been.’”
State v. Beckwith, 8th Dist. Cuyahoga No. 102544, 2016-Ohio-3267, ¶ 2, quoting
State v. Dunbar, 8th Dist. Cuyahoga No. 87317, 2007-Ohio-3261, quoting
Matthews v. Matthews, 5 Ohio App.3d 140, 143, 450 N.E.2d 278 (10th Dist.1982).
{¶3} The state’s motion calls to the attention of this court an error in its
decision. Accordingly, we grant the motion for reconsideration, vacate the earlier
1 The original decision in this appeal, State v. Shabazz, 8th Dist. Cuyahoga No.
112140, 2023-Ohio-2775, released on August 10, 2023, is hereby vacated. This opinion, issued upon reconsideration, is the court’s journalized decision in this appeal. See App.R. 22(C); see also S.Ct.Prac.R. 7.01. opinion, and issue this opinion in its place. See App.R. 22(C); see also S.Ct.Prac.R.
7.01.
{¶4} Defendant-appellant Jamil A. Shabazz (“Shabazz”) appeals the denial
of his motion for a new trial and asks this court to grant him a new trial. We affirm
the judgment of the trial court.
I. Procedural History
{¶5} On November 28, 2007, Shabazz was found guilty of one count of
murder, an unclassified felony, in violation of R.C. 2903.02. A three-year firearm
specification was attached to the charge. Shabazz was sentenced to a total of 18
years’ imprisonment.
{¶6} Shabazz, then referred to as Jamil Shabazz Abdul, appealed in State v.
Abdul, 8th Dist. Cuyahoga No. 90789, 2009-Ohio-225 (“Shabazz I”), arguing that
he “was not afforded effective assistance of counsel when defense counsel failed to
inquire concerning prospective jurors bias towards member of the Muslim faith.”
Id. at ¶ 1. He also argued that “the trial court erred in denying appellant’s motion
for acquittal where evidence is not sufficient to support conviction.” Id. The court
affirmed Shabazz’s convictions. Id. at ¶ 2, 35. The court found that the evidence
“could convince a rational trier of fact that the State had proven beyond a
reasonable doubt each element of the charge of murder.” Id. at ¶ 28. The court
stated: Two eye-witnesses, both members of the Mad Dog social organization, testified that they saw Shabazz Abdul exit the residence, re-enter after a few moments with a gun, and immediately shoot Rodgers in the head. Both Green and Saunders testified that Shabazz Abdul shot Rodgers at close range. In addition, Dr. Armstrong, a forensic pathologist, confirmed that Rodgers was shot in the head from a distance of less than 12 inches.
Id. at ¶ 29.
{¶7} Later in 2009, Shabazz filed a petition for postconviction relief,
claiming that the witnesses committed perjury. The trial court denied his petition,
and Shabazz appealed in State v. Shabazz, 8th Dist. Cuyahoga No. 94738, 2010-
Ohio-5789 (“Shabazz II”). In Shabazz II, Shabazz appealed the trial court’s denial
of his petition for postconviction relief. Id. at ¶ 1. The court affirmed the trial
court’s ruling. Id. The court stated that Shabazz’s claims are barred by res judicata.
Id. at ¶ 6. Additionally, the court stated that Shabazz did not offer any evidence to
support his claims. Id. at ¶ 7.
{¶8} In 2012, Shabazz filed a motion for a new trial, challenging his
indictment, the amendment to his indictment, and the trial court’s jury
instructions. The trial court denied his motion, and Shabazz appealed in State v.
Shabazz, 8th Dist. Cuyahoga No. 98601, 2013-Ohio-267 (“Shabazz III”). The court
affirmed the trial court’s denial. The court stated, “Although not raised in
appellant’s motion for a new trial before the trial court, appellant now asserts that
his motion is based on newly discovered evidence. However, none of appellant’s
assignments of error pertain to newly discovered evidence.” Id. at ¶ 9. {¶9} The court also stated that Shabazz’s claims were barred by res judicata,
stating, “Each of appellant’s assignments of error pertain to matters that were
squarely within the record at the time of appellant’s direct appeal. Because they
were not raised on direct appeal, appellant is barred by the doctrine of res judicata
from raising them in this subsequent action.” Id. at ¶ 11.
{¶10} In 2012, Shabazz filed a pro se challenge to the imposition of
postrelease control for the murder conviction, correctly noting that postrelease
control is not applicable to murder, an unclassified felony. The trial court granted
the motion on August 20, 2012, in a journal entry that stated, “Defendant’s
sentencing entry is corrected to eliminate any reference to post-release control.
However, the defendant is not entitled to a de novo sentencing. See State v. Lofton,
4th Dist. Pickaway No. 11CA16, 2012-Ohio-2274.”
{¶11} In 2013, Shabazz filed a second motion for a new trial, claiming newly
discovered evidence. The trial court denied the motion, and Shabazz filed an
appeal in State v. Shabazz, 8th Dist. Cuyahoga No. 100623, 2014-Ohio-3142
(“Shabazz IV”) appealing the trial court’s decision denying his motion for leave
asking for a new trial. Id. at ¶ 1. The court affirmed the trial court’s decision. Id.
The court stated, “Accordingly, because the arguments Shabazz makes in this
appeal were previously considered and rejected in his prior appeals, the doctrine
of res judicata applies.” Id. at ¶ 13. “Notwithstanding the effect of res judicata, we
further find that Shabazz failed to satisfy his burden of proving he was unavoidably prevented from discovering the purported new evidence, which would warrant the
trial court to grant him leave to request a new trial.” Id. at ¶ 14.
{¶12} In 2015, Shabazz filed a motion for leave to file a motion for a new
trial. Shabazz did not present any new evidence to the trial court, and the trial
court denied his motion. Shabazz filed an appeal in State v. Abdul, 8th Dist.
Cuyahoga No. 103510, 2016-Ohio-3063 (“Shabazz V”). The court affirmed the trial
court’s decision. Id. at ¶ 1. The court ruled that Shabazz’s assignments of error
were barred by res judicata. Id.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Shabazz, 2024-Ohio-345.]
[Please see vacated opinion at 2023-Ohio-2775.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 112140 v. :
JAMIL A. SHABAZZ, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: February 1, 2024
Criminal Appeal from the Cuyahoga County Common Pleas Court Case No. CR-07-495551-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kristen Hatcher, Assistant Prosecuting Attorney, for appellee.
Jamil A. Shabazz, pro se. ON RECONSIDERATION1
ANITA LASTER MAYS, P.J.:
{¶1} Plaintiff-appellee, the state of Ohio (“the state”), moves this court,
pursuant to App.R. 26(A)(1), to reconsider our decision in the State v. Shabazz,
8th Dist. Cuyahoga No. 112140, 2023-Ohio-2775, which we issued on August 10,
2023.
{¶2} App.R. 26 does not provide specific guidelines to be used by an
appellate court when determining whether a decision should be reconsidered or
modified.
In determining whether to grant a motion for reconsideration filed pursuant to App.R. 26(A)(1)(a), the test “‘is whether the motion calls to the attention of the court an obvious error in its decision or raises an issue for our consideration that was either not considered at all or was not fully considered by [the court] when it should have been.’”
State v. Beckwith, 8th Dist. Cuyahoga No. 102544, 2016-Ohio-3267, ¶ 2, quoting
State v. Dunbar, 8th Dist. Cuyahoga No. 87317, 2007-Ohio-3261, quoting
Matthews v. Matthews, 5 Ohio App.3d 140, 143, 450 N.E.2d 278 (10th Dist.1982).
{¶3} The state’s motion calls to the attention of this court an error in its
decision. Accordingly, we grant the motion for reconsideration, vacate the earlier
1 The original decision in this appeal, State v. Shabazz, 8th Dist. Cuyahoga No.
112140, 2023-Ohio-2775, released on August 10, 2023, is hereby vacated. This opinion, issued upon reconsideration, is the court’s journalized decision in this appeal. See App.R. 22(C); see also S.Ct.Prac.R. 7.01. opinion, and issue this opinion in its place. See App.R. 22(C); see also S.Ct.Prac.R.
7.01.
{¶4} Defendant-appellant Jamil A. Shabazz (“Shabazz”) appeals the denial
of his motion for a new trial and asks this court to grant him a new trial. We affirm
the judgment of the trial court.
I. Procedural History
{¶5} On November 28, 2007, Shabazz was found guilty of one count of
murder, an unclassified felony, in violation of R.C. 2903.02. A three-year firearm
specification was attached to the charge. Shabazz was sentenced to a total of 18
years’ imprisonment.
{¶6} Shabazz, then referred to as Jamil Shabazz Abdul, appealed in State v.
Abdul, 8th Dist. Cuyahoga No. 90789, 2009-Ohio-225 (“Shabazz I”), arguing that
he “was not afforded effective assistance of counsel when defense counsel failed to
inquire concerning prospective jurors bias towards member of the Muslim faith.”
Id. at ¶ 1. He also argued that “the trial court erred in denying appellant’s motion
for acquittal where evidence is not sufficient to support conviction.” Id. The court
affirmed Shabazz’s convictions. Id. at ¶ 2, 35. The court found that the evidence
“could convince a rational trier of fact that the State had proven beyond a
reasonable doubt each element of the charge of murder.” Id. at ¶ 28. The court
stated: Two eye-witnesses, both members of the Mad Dog social organization, testified that they saw Shabazz Abdul exit the residence, re-enter after a few moments with a gun, and immediately shoot Rodgers in the head. Both Green and Saunders testified that Shabazz Abdul shot Rodgers at close range. In addition, Dr. Armstrong, a forensic pathologist, confirmed that Rodgers was shot in the head from a distance of less than 12 inches.
Id. at ¶ 29.
{¶7} Later in 2009, Shabazz filed a petition for postconviction relief,
claiming that the witnesses committed perjury. The trial court denied his petition,
and Shabazz appealed in State v. Shabazz, 8th Dist. Cuyahoga No. 94738, 2010-
Ohio-5789 (“Shabazz II”). In Shabazz II, Shabazz appealed the trial court’s denial
of his petition for postconviction relief. Id. at ¶ 1. The court affirmed the trial
court’s ruling. Id. The court stated that Shabazz’s claims are barred by res judicata.
Id. at ¶ 6. Additionally, the court stated that Shabazz did not offer any evidence to
support his claims. Id. at ¶ 7.
{¶8} In 2012, Shabazz filed a motion for a new trial, challenging his
indictment, the amendment to his indictment, and the trial court’s jury
instructions. The trial court denied his motion, and Shabazz appealed in State v.
Shabazz, 8th Dist. Cuyahoga No. 98601, 2013-Ohio-267 (“Shabazz III”). The court
affirmed the trial court’s denial. The court stated, “Although not raised in
appellant’s motion for a new trial before the trial court, appellant now asserts that
his motion is based on newly discovered evidence. However, none of appellant’s
assignments of error pertain to newly discovered evidence.” Id. at ¶ 9. {¶9} The court also stated that Shabazz’s claims were barred by res judicata,
stating, “Each of appellant’s assignments of error pertain to matters that were
squarely within the record at the time of appellant’s direct appeal. Because they
were not raised on direct appeal, appellant is barred by the doctrine of res judicata
from raising them in this subsequent action.” Id. at ¶ 11.
{¶10} In 2012, Shabazz filed a pro se challenge to the imposition of
postrelease control for the murder conviction, correctly noting that postrelease
control is not applicable to murder, an unclassified felony. The trial court granted
the motion on August 20, 2012, in a journal entry that stated, “Defendant’s
sentencing entry is corrected to eliminate any reference to post-release control.
However, the defendant is not entitled to a de novo sentencing. See State v. Lofton,
4th Dist. Pickaway No. 11CA16, 2012-Ohio-2274.”
{¶11} In 2013, Shabazz filed a second motion for a new trial, claiming newly
discovered evidence. The trial court denied the motion, and Shabazz filed an
appeal in State v. Shabazz, 8th Dist. Cuyahoga No. 100623, 2014-Ohio-3142
(“Shabazz IV”) appealing the trial court’s decision denying his motion for leave
asking for a new trial. Id. at ¶ 1. The court affirmed the trial court’s decision. Id.
The court stated, “Accordingly, because the arguments Shabazz makes in this
appeal were previously considered and rejected in his prior appeals, the doctrine
of res judicata applies.” Id. at ¶ 13. “Notwithstanding the effect of res judicata, we
further find that Shabazz failed to satisfy his burden of proving he was unavoidably prevented from discovering the purported new evidence, which would warrant the
trial court to grant him leave to request a new trial.” Id. at ¶ 14.
{¶12} In 2015, Shabazz filed a motion for leave to file a motion for a new
trial. Shabazz did not present any new evidence to the trial court, and the trial
court denied his motion. Shabazz filed an appeal in State v. Abdul, 8th Dist.
Cuyahoga No. 103510, 2016-Ohio-3063 (“Shabazz V”). The court affirmed the trial
court’s decision. Id. at ¶ 1. The court ruled that Shabazz’s assignments of error
were barred by res judicata. Id. at ¶ 13.
{¶13} In 2019, Shabazz filed another petition for postconviction relief, and
the trial court denied the petition. Shabazz filed an appeal in State v. Abdul, 8th
Dist. Cuyahoga No. 108315, 2019-Ohio-5245 (“Shabazz VI”). The court affirmed
the trial court’s decision, stating that Shabazz’s claims are barred by res judicata.
Id. at ¶ 20.
{¶14} In 2022, Shabazz filed a fourth motion for leave to file a motion for a
new trial and a motion for a new trial. The trial court denied both motions, and
Shabazz filed this appeal.
{¶15} This court summarized the facts of this case in Shabazz I at ¶ 5-22.
Shabazz assigns two errors for our review:
1. Appellant was not afforded a new trial based on a Brady violation when he filed a Crim.R. 33(B) motion; and
2. The appellant’s substantial rights were violated when the prosecution abused their discretion and committed misconduct. II. Summary Denial of Successive Motion for New Trial Filed Without Leave and Res Judicata
{¶16} Shabazz’s arguments are identical to the ones he made in prior
appeals. He claims that the state’s witness lied on the stand and the prosecution
withheld exculpatory evidence. However, Shabazz’s arguments are barred by res
judicata. “Res judicata is applicable to all postconviction proceedings.” Shabazz
VI at ¶ 14, citing State v. Szefcyk, 77 Ohio St. 3d 93, 95, 671 N.E.2d 233 (1996).
“Under this doctrine, a defendant who was represented by counsel is barred from
raising an issue in a petition for postconviction relief if the defendant raised or
could have raised the issue at trial or on direct appeal.” Id.
{¶17} Pursuant to R.C. 2953.21(C), a trial court may deny a petition for
postconviction relief without holding an evidentiary hearing where the petition,
the supporting affidavits, the documentary evidence, the files, and the records do
not demonstrate that petitioner set forth sufficient operative facts to establish
substantive grounds for relief. State v. Calhoun, 86 Ohio St.3d 279, 281, 714
N.E.2d. 905 (1999).2
{¶18} In this instant case, Shabazz filed a fourth motion for a new trial under
Crim.R. 33(B). According to the rule, one seeking a new trial based on newly
discovered evidence after the period specified in the rule has expired, must first
2 Petitioner cites R.C.2953.21(C) as applicable to his argument on appeal. This court recognizes that the issue on appeal for a denial of a motion for a new trial is governed under Crim.R. 33(B). file a motion for leave to file a motion for new trial. The motion for leave must
demonstrate that the movant was unavoidably prevented from discovering the new
evidence that underpins a future motion for new trial.
[A] party is unavoidably prevented from filing a motion for a new trial if the party had no knowledge of the existence of the ground supporting the motion for new trial and [with reasonable diligence,] could not have learned of the existence of that ground within the time prescribed for filing the motion for new trial * * *. State v. Walden, 19 Ohio App.3d 141, 145-146, 19 Ohio B. 230, 483 N.E.2d 859
(10th Dist.1984).
{¶19} This court reviews the denial of a delayed motion for a new trial for
an abuse of discretion. State v. Gray, 8th Dist. Cuyahoga No. 94282, 2010-Ohio-
5842, ¶ 17. However, Shabazz has not demonstrated that he was unavoidably
prevented from discovering new evidence. Therefore, the trial court did not err
when it denied Shabazz’s motion for a new trial. Furthermore, these claims could
have been brought during the prior appeals and are barred by res judicata.
{¶20} Therefore, Shabazz’s assignments of error are overruled.
{¶21} Judgment affirmed.
It is ordered that appellee recover from 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. A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
______________________________________ ANITA LASTER MAYS, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and FRANK DANIEL CELEBREZZE, III, J., CONCUR