[Cite as State v. Ibrahim, 2014-Ohio-5307.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 14AP-355 

v. : (C.P.C. No. 12CR-01-509) 

Mohamed A. Ibrahim, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 ___ 

D E C I S I O N 

Rendered on November 28, 2014 

 ___ 

Ron O'Brien, Prosecuting Attorney, and Barbara A. 

Farnbacher, for appellee. 

Alan D. Gabel, for appellant. 

 ____ 

APPEAL from the Franklin County Court of Common Pleas 

DORRIAN, J. 

{¶ 1} Defendant-appellant, Mohamed A. Ibrahim ("appellant"), appeals from a 

judgment of the Franklin County Court of Common Pleas denying a hearing on his 

petition for postconviction relief and ultimately denying the same. For the following 

reasons, we affirm in part and reverse in part. 

{¶ 2} In February 2013, appellant was convicted of one count of aggravated 

burglary, in violation of R.C. 2911.11, a felony of the first degree; two counts of felonious 

assault, in violation of R.C. 2903.11, felonies of the second degree; eleven counts of 

kidnapping, in violation of R.C. 2905.01, felonies of the first degree; and eleven counts of 

aggravated robbery, in violation of R.C. 2911.01, felonies of the first degree, all with 

accompanying firearm specifications. The charges arose from a home invasion in which 

appellant, and his co-defendant, Mohamed M. Noor ("Noor"), entered the home of 

Farheyo Abdulkar ("Farheyo"), and robbed her and 10 of her guests at gunpoint. 
No. 14AP-355 2 

Appellant was sentenced to a total of 57 years' imprisonment. Noor was convicted of the 

same, as well as having a weapon under disability. He was sentenced to a total of 65 years 

in prison.1

{¶ 3} Ibrahim and Noor were tried together before a jury. Both appealed their 

convictions. In his appeal, Ibrahim set forth two assignments of error alleging that the 

trial court erred because: (1) the court used an interpreter who was not qualified pursuant 

to R.C. 2911.14; and (2) the court abused its discretion when it imposed a 57-year prison 

sentence. Noor set forth five assignments of error alleging the trial court erred because: 

(1) the court failed to instruct the jury on the mental state required to convict as an aider 

or abettor; (2) the court permitted certain testimony of police officer witnesses; (3) the 

court failed to appoint an interpreter qualified by the Supreme Court of Ohio and failed to 

record the foreign language testimony; (4) the court refused to instruct on trespass as a 

lesser-included offense of aggravated burglary; and (5) the court erred by not merging the 

kidnapping and aggravated robbery charges. 

{¶ 4} On February 25, 2014, we affirmed appellant's convictions in State v. 

Ibrahim, 10th Dist. No. 13AP-167, 2014-Ohio-666; on August 5, 2014, we affirmed in part 

and reversed in part Noor's convictions in State v. Noor, 10th Dist. No. 13AP-165, 2014-

Ohio-3397, and remanded the case to the trial court for further proceedings consistent 

with our finding that the trial court erred in not merging the aggravated robbery and 

kidnapping offenses. The facts regarding the home invasion are extensively summarized 

in the aforementioned cases and will not be summarized here. 

{¶ 5} On November 12, 2013, Ibrahim filed a petition for postconviction relief, 

pursuant to R.C. 2953.21(C). He asserted the following grounds for relief: 

 Ineffective assistance of trial counsel: 

o For failure to investigate and adequately prepare for trial; 

o For failure to subpoena key witnesses to testify on appellant's 

behalf; 

 

1 Noor appealed his sentence, and this court found that the trial court erred in not merging his convictions 

for aggravated robbery and kidnapping. We therefore reversed and remanded the case for the trial court to 

conduct further proceedings, consistent with our decision. State v. Noor, 10th Dist. No. 13AP-165, 2014-

Ohio-3397. On August 13, 2014, the state moved that we reconsider our decision, which we denied. State v. 

Noor, 10th Dist. No. 13AP-165 (Nov. 25, 2014) (memorandum decision). 
No. 14AP-355 3 

o For failure to inform appellant sufficiently to enable him to 

assist in his own defense; 

o For failures relating to the use of an interpreter at trial: 

 Failure to preserve the record of translation; 

 Failure to request interpreter's qualifications be established 

on the record; 

 Failure to question the availability of a certified interpreter; 

 Failure to object to less than a word-for-word translation; 

 Failure to request that the interpreter be sworn in on the 

record. 

o Failure to argue self-defense or to request a self-defense 

instruction; 

o Failure to adequately present or develop significant evidence at 

trial; 

o Failure to investigate, evaluate and present evidence of mitigating 

circumstances with respect to appellant's sentencing; 

o Failure to object to appellant's conviction of both aggravated 

robbery and kidnapping and failure to object to non-merger of the 

same.2

 Cumulative error and effect. 

 Ineffective assistance of appellate counsel: 

o For failure to raise on appeal ineffective assistance of trial counsel for 

failures relating to the use of an interpreter at trial; 

o For failure to raise on appeal ineffective assistance of trial counsel 

for failure to request severance of trial for Ibrahim from Noor or to 

ask for a mistrial when Noor's counsel shifted the blame for the 

criminal activity to appellant; 

 

2 Appellant does not address this issue on appeal and, therefore, we will not address it. Furthermore, such a claim was 

apparent from the transcript of the trial, was raised by co-defendant Noor on appeal, and could have been raised by 

appellant's counsel on appeal. Therefore, it is barred by res judicata. 
No. 14AP-355 4 

o For failure to raise on appeal ineffective assistance of trial counsel 

for failure to object to appellant's conviction of both aggravated 

robbery and kidnapping and failure to object to non-merger of the 

same. 

The state moved to dismiss for being untimely3 and filed an answer to the same. On 

April 1, 2014, the trial court, without holding a hearing on the petition, issued a decision 

and denied the petition. Appellant filed a timely appeal, alleging the following assignment 

of error: 

THE TRIAL COURT ERRED IN FAILING TO GRANT 

APPELLANT A HEARING ON HIS PETITION FOR POSTCONVICTION RELIEF. 

{¶ 6} At the outset, we note that appellant's claims regarding the ineffective 

assistance of appellate counsel are not proper grounds for relief in a petition for 

postconviction relief but, rather, are more properly raised in an application to reopen 

appeal pursuant to App.R. 26(B). See State v. Mayrides, 10th Dist. No. 03AP-347, 2004-

Ohio-1623 ("The trial court also properly denied appellant's claim for ineffective 

assistance of appellate counsel, as such claims are not cognizable in post-conviction 

proceedings."). Therefore, we will not consider or address these claims in our discussion 

of whether the trial court erred in failing to grant appellant a hearing before denying his 

petition for postconviction relief. 

{¶ 7} R.C. 2953.21 states in relevant part: 

(A)(1)(a) Any person who has been convicted of a criminal 

offense * * * and who claims that there was such a denial or 

infringement of the person's rights as to render the judgment 

void or voidable under the Ohio Constitution or the 

Constitution of the United States * * *, may file a petition in 

the court that imposed sentence, stating the grounds for relief 

relied upon, and asking the court to vacate or set aside the 

judgment or sentence or to grant other appropriate relief. The 

petitioner may file a supporting affidavit and other 

documentary evidence in support of the claim for relief. 

 

3 R.C. 2953.21(A)(2) states: "[e]xcept as otherwise provided in section 2953.23 of the Revised Code, a petition under 

division (A)(1) of this section shall be filed no later than one hundred eighty days after the date on which the trial 

transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication." The trial 

court accepted appellant's petition to be timely given appellant's counsel's unfamiliarity with the court's e-filing system 

and due to a technicality in the e-filing system which rejected the petition. We accept the trial court's finding that the 

petition was timely filed. 
No. 14AP-355 5 

* * * 

(C) * * * Before granting a hearing on a petition filed under 

division (A) of this section, the court shall determine whether 

there are substantive grounds for relief. In making such a 

determination, the court shall consider, in addition to the 

petition, the supporting affidavits, and the documentary 

evidence, all the files and records pertaining to the 

proceedings against the petitioner, including, but not limited 

to, the indictment, the court's journal entries, the journalized 

records of the clerk of the court, and the court reporter's 

transcript. 

* * * 

(E) Unless the petition and the files and records of the case 

show the petitioner is not entitled to relief, the court shall 

proceed to a prompt hearing on the issues even if a direct 

appeal of the case is pending. 

I. Purpose of Postconviction Relief

{¶ 8} The postconviction relief process is a civil collateral attack on a criminal 

judgment, not an appeal of that judgment. State v. Davis, 10th Dist. No. 13AP-98, 2014-

Ohio-90, ¶ 17, citing State v. Calhoun, 86 Ohio St.3d 279, 281 (1999). Postconviction 

relief is a means by which the petitioner may present constitutional issues to the court 

that would otherwise be impossible to review because the evidence supporting those 

issues is not contained in the record of the petitioner's criminal conviction. State v. 

Carter, 10th Dist. No. 13AP-4, 2013-Ohio-4058, ¶ 15, citing State v. Murphy, 10th Dist. 

No. 00AP-233 (Dec. 26, 2000). Postconviction review is not a constitutional right but, 

rather, is a narrow remedy which affords a petitioner no rights beyond those granted by 

statute. Calhoun at 281-82. A postconviction relief petition does not provide a petitioner 

a second opportunity to litigate his or her conviction. State v. Hessler, 10th Dist. No. 

01AP-1011, 2002-Ohio-3321, ¶ 32; Murphy.

II. Requirements to Have a Hearing

{¶ 9} A defendant is not automatically entitled to an evidentiary hearing on a 

petition for postconviction relief. State v. Sidibeh, 10th Dist. No. 12AP-498, 2013-Ohio2309, ¶ 13, citing State v. Jackson, 64 Ohio St.2d 107, 110-13 (1980). We review a trial 
No. 14AP-355 6 

court's decision to deny a postconviction petition with a hearing for an abuse of 

discretion. State v. Holloman, 10th Dist. No. 06AP-608, 2006-Ohio-6789, ¶ 7. To warrant 

an evidentiary hearing on a petition for postconviction relief, a petitioner bears the initial 

burden of providing evidence that demonstrates a cognizable claim of constitutional 

error. State v. Campbell, 10th Dist. No. 03AP-147, 2003-Ohio-6305, ¶ 15, citing R.C. 

2953.21(C); Hessler at ¶ 33. As the Supreme Court of Ohio noted in State v. Cole, 2 Ohio 

St.3d 112, 113 (1982), a trial court has a statutorily imposed duty to ensure a defendant 

presents evidence sufficient to warrant a hearing. The evidence must show "there was 

such a denial or infringement of the person's rights as to render the judgment void or 

voidable under the Ohio Constitution or the Constitution of the United States." R.C. 

2953.21(A)(1)(a); Calhoun at 282-83. Pursuant to R.C. 2953.21(C), a defendant's petition 

for postconviction relief may be denied by a trial court without holding an evidentiary 

hearing where the petition, the supporting affidavits, the documentary evidence, the files, 

and the records do not demonstrate that the petitioner set forth sufficient operative facts 

to establish substantive grounds for relief. Id. at paragraph two of the syllabus. 

III. Res Judicata Bars Hearing 

{¶ 10} A trial court may also dismiss a petition for postconviction relief without 

holding an evidentiary hearing when the claims raised in the petition are barred by the 

doctrine of res judicata. Campbell at ¶ 16, citing State v. Szefcyk, 77 Ohio St.3d 93 (1996), 

syllabus. "Res judicata is applicable in all postconviction relief proceedings." Szefcyk at 

95. Under the doctrine of res judicata, 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. at syllabus; State v. 

Reynolds, 79 Ohio St.3d 158, 161 (1997). Similarly, to the extent that appellant contends 

that the trial transcript contains evidence of deficient performance on the part of trial 

counsel, appellant may not rely upon such evidence in support of his petition. Davis, 

citing Cole at 113-14. 

{¶ 11} In order to avoid the defense of res judicata, support for the claims in the 

petition for postconviction relief must be competent, relevant, and material evidence, 

outside the trial court's record, and it must not be evidence that existed or was available 

for use at the time of trial. See State v. Braden, 10th Dist. No. 02AP-954, 2003-Ohio-
No. 14AP-355 7 

2949, ¶ 27. Where new counsel represents a defendant on direct appeal and the 

ineffectiveness of trial counsel could have been determined without resort to evidence 

outside the record, a petition for postconviction relief alleging ineffective assistance of 

trial counsel is barred by res judicata. Cole at 114. 

{¶ 12} We find that several of appellant's claims in his petition for postconviction 

relief were barred by res judicata. Appellant claimed ineffective assistance of trial counsel 

for failures relating to the use of an interpreter at trial. Appellant argued that trial counsel 

failed to preserve the record of the translation, failed to request that the interpreter's 

qualifications be established on the record, failed to question the availability of a certified 

interpreter, failed to object to less than a word-for-word translation, and failed to request 

that the interpreter be sworn in on the record. In support of his arguments, he points in 

particular to Sup.R. 88. All these alleged errors were readily apparent from the trial 

transcript and could have been raised either at trial or on direct appeal. Indeed, both 

appellant and his co-defendant, Noor, raised issues in their direct appeal related to 

alleged failures relating to the use of an interpreter at trial. Noor also supported his 

arguments with reference to Sup.R. 88. We addressed the merits of those arguments in 

Ibrahim at ¶ 6-14, Noor at ¶ 61-77. We decline to address the interpreter issues again as 

appellant's claims in this regard are barred by res judicata. Therefore, we affirm the trial 

court's denial of the petition for postconviction relief without a hearing on grounds of 

ineffective assistance of trial counsel for failures relating to the use of the interpreter at 

trial. 

{¶ 13} Appellant also claimed ineffective assistance of counsel for failure to object 

and request a mistrial when counsel for co-defendant Noor indicated appellant's guilt in 

an attempt to exonerate Noor. He further claimed that his attorney was ineffective by not 

asking for severance of the trials for appellant and Noor. Although these issues were not 

raised on appeal, they could have been, as appellate counsel could have determined these 

issues upon review of the transcript and without resort to evidence outside the record. 

We decline to address this issue as it was barred by res judicata. Therefore, we affirm the 

trial court's denial of the petition for postconviction relief on grounds of ineffective 

assistance of trial counsel for failure to object and request a mistrial and/or request 

severance of the trials from co-defendant Noor. 
No. 14AP-355 8 

{¶ 14} Appellant claimed ineffective assistance of counsel for failure to call as a 

witness on his behalf an expert on Somalian tribal interaction and customs in order to 

show: (1) that appellant would have removed his shoes before entering the apartment; 

and (2) that there was significant tension between the Monnguer Somalia tribe, of which 

appellant is a member, and the Somalilander tribe, of which the prosecuting witnesses 

were members. The transcript, however, reflects that trial counsel questioned appellant 

regarding Somali culture, as well as regarding the custom of removing shoes before 

entering a home. Appellant testified that he removed his shoes before entering Farheyo's 

home. He also testified that one of the victims asked him where he was from and made an 

issue of this. Yet, appellant did not elaborate in his testimony regarding the tension 

between the Somali tribes. If appellant felt that the questioning was ineffective, or that an 

expert should have been called to address the same, he could have raised this on appeal, 

but he did not. We decline to address these issues as they were barred by res judicata. 

Therefore, we affirm the trial court's denial of the petition for postconviction relief on 

grounds of ineffective assistance of trial counsel for failure to further address the issues of 

the removal of shoes and the tension between the Somalilander tribe and the Monnguer 

Somalia tribe. 

{¶ 15} Appellant makes several other claims of ineffective assistance of counsel, 

including, in general, failure to investigate and adequately prepare for trial, failure to 

subpoena key witnesses, and failure to inform appellant regarding the progress of his case 

and the availability of a self-defense instruction. Many of these claims too were barred by 

res judicata. 

{¶ 16} Appellant claimed that trial counsel was ineffective because he failed to 

inform appellant regarding the affirmative defense of self-defense. He does not support 

this argument in his appellate brief, however, other than to say that, when his 

postconviction relief attorney explained self-defense to him, he realized it would have 

been applicable to him. It was clear from the transcript that self-defense was not raised 

by trial counsel at the jury instructions conference, and the trial court did not instruct the 

jury regarding self-defense. This claim could have been raised on direct appeal and, 

accordingly, is barred by res judicata. Therefore, we affirm the trial court's denial of the 
No. 14AP-355 9 

petition for postconviction relief on grounds of ineffective assistance of trial counsel for 

failure to advise appellant regarding the affirmative defense of self-defense. 

{¶ 17} Appellant also claimed that counsel should have questioned the witnesses at 

trial regarding: (1) the fact that there was no blood on his face mask because he removed 

it before entering the apartment; (2) the fact that the police only collected the cellphones 

of appellant and co-defendant Noor; (3) the fact that appellant's wallet and $80 were 

stolen from him during the incident; (4) the fact that appellant did not own the gun; 

(5) the fact that the apartment was a known drug house; (6) the fact that appellant had an 

altercation with Abdi Mohamed ten days prior to the robbery; and (7) the fact that the 

prosecuting witnesses fabricated a story. Several police officers testified at trial and could 

have been questioned as to the issues relating to physical evidence. Appellant himself 

testified that he did not own a gun, and numerous witnesses testified that the apartment 

was a known drug house. Appellant also testified that he and Abdi Mohamed had gotten 

into it on the streets before and that the prosecuting witnesses must have coordinated 

their stories. All of this was clear from the transcript. These claims could have been 

raised on direct appeal and, accordingly, are barred by res judicata. Therefore, we affirm 

the trial court's denial of the petition for postconviction relief on grounds of ineffective 

assistance of trial counsel for failure to advise appellant regarding these issues. 

IV. Ineffective Assistance of Counsel 

{¶ 18} A convicted defendant alleging ineffective assistance of counsel must 

demonstrate that: (1) defense counsel's performance was so deficient that he or she was 

not functioning as the counsel guaranteed under the Sixth Amendment to the United 

States Constitution; and (2) that defense counsel's errors prejudiced defendant, depriving 

him or her of a trial whose result is reliable. Campbell at ¶ 24, citing Strickland v. 

Washington, 466 U.S. 668 (1984); State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph 

two of the syllabus, cert. denied, 497 U.S. 1011 (1990). In order to secure a hearing on an 

ineffective assistance of counsel claim in a petition for postconviction relief, the petitioner 

bears the initial burden of submitting evidentiary documents that together contain 

sufficient operative facts which, if believed, would establish defense counsel had 

substantially violated at least one of a defense attorney's essential duties to his client and 

that the defendant was prejudiced as a result. Cole at 114; Jackson at syllabus. "Judicial 
No. 14AP-355 10 

scrutiny of counsel's performance must be highly deferential * * * [and] a court must 

indulge a strong presumption that counsel's conduct falls within the wide range of 

reasonable professional assistance." Strickland at 689; Bradley at 141. In Ohio, a 

properly licensed attorney is presumed competent. Davis at ¶ 20, citing Vaughn v. 

Maxwell, 2 Ohio St.2d 299, 301 (1965). Trial counsel is entitled to a strong presumption 

that all decisions fall within the wide range of reasonable professional assistance. State v. 

Sallie, 81 Ohio St.3d 673, 675 (1998). With this in mind, we consider the remainder of 

appellant's claims.

{¶ 19} Furthermore, with regard to appellant's averments that he asked his trial 

counsel to further investigate certain issues, we keep in mind that appellant did not 

present the affidavit of his trial counsel to corroborate either that trial counsel had been 

advised of these issues and witnesses by appellant or that he did not further investigate 

these issues. The lack of such an affidavit by trial counsel is significant because there is no 

evidence indicating what steps trial counsel took to prepare for trial. State v. MesserTomak, 10th Dist. No. 10AP-847, 2011-Ohio-3700, ¶ 14-15 ("Defendant claims her trial 

counsel failed to investigate various topics that would have enhanced counsel's ability to 

cross-examine the state's witnesses * * *, however, [h]e did not attach to her petition for 

post-conviction relief an affidavit from her trial counsel, or anyone else, stating what steps 

trial counsel took to prepare for cross-examination * * * [and therefore failed] to present 

sufficient operative facts indicating the extent of investigation counsel undertook * * * 

[and failed] to establish substantive grounds for a hearing or for relief on her claim of 

ineffective assistance of counsel based on counsel's failure to investigate [the case]."). See

State v. Silverman, 10th Dist. No. 06AP-1278, 2007-Ohio-6498, ¶ 27, discretionary 

appeal not allowed, 117 Ohio St.3d 1459, 2008-Ohio-1635 (concluding the petitioner's 

claim that her trial counsel failed to effectively investigate or prepare the case for trial was 

unmeritorious where "the record [did] not include an affidavit from trial counsel, the 

investigator, or any other non-interested party with personal knowledge of what steps 

trial counsel took in preparing appellant's case for trial"). 

V. Credibility of Appellant's Own Self-Serving Affidavit

{¶ 20} In support of his other claims that trial counsel was ineffective for failing to 

investigate and subpoena witnesses, appellant provided ten affidavits, including his own 
No. 14AP-355 11 

and those of two family members. Appellant argues that " '[w]hen determining whether 

there are substantive grounds for postconviction relief that would warrant a hearing the 

affidavits offered in support of the petition should be accepted as true.' " (Emphasis sic.) 

(Appellant's Brief, 1, quoting State v. Swortcheck, 101 Ohio App.3d 770 (8th Dist.1995).). 

The Supreme Court of Ohio has stated, however, that " 'in reviewing a petition for 

postconviction relief filed pursuant to R.C. 2953.21, a trial court should give due deference 

to affidavits sworn to under oath and filed in support of the petition, but may, in the 

sound exercise of discretion, judge their credibility in determining whether to accept the 

affidavits as true statements of fact.' " State v. Jeffers, 10th Dist. No. 10AP-1112, 2011-

Ohio-3555, ¶ 11, quoting Calhoun at 284. 

{¶ 21} In postconviction relief proceedings, the trial court may, under appropriate 

circumstances, deem affidavit testimony to lack credibility without first observing or 

examining the affiant. State v. Taylor, 10th Dist. No. 14AP-166, 2014-Ohio-3574, ¶ 16; 

Davis at ¶ 26, citing Calhoun at 284. The trial court in this case, without observing or 

examining appellant, determined that his affidavit could be viewed as self-serving due to 

his vested interest in the petition. 

{¶ 22} This court has previously held that a petitioner's own self-serving affidavit is 

legally insufficient to rebut the record in the underlying criminal proceedings. State v. 

Banks, 10th Dist. No. 10AP-1065, 2011-Ohio-2749, citing State v. Kapper, 5 Ohio St.3d 

36, 38 (1983); Mayrides. Consistent with this holding, we find that appellant's own selfserving affidavit is legally insufficient to support his claim that trial counsel was 

ineffective for failing to secure footage from security cameras located in front and in back 

of the apartment. Appellant claimed that said footage would have corroborated his 

testimony that he was not inside the apartment robbing people and that the prosecuting 

witnesses fled the apartment carrying drugs. In support of this alleged ineffective 

assistance of counsel, appellant points to his own affidavit, and nothing more. Although 

affiant Abdullah Aboke avers that the security cameras existed, neither he nor appellant 

aver that they viewed the security footage. Notwithstanding, appellant avers the security 

footage would have rebutted the evidence presented at trial. As noted above, appellant's 

self-serving affidavit alone is legally insufficient to establish operative facts with regard to 

this claim. We affirm the trial court's denial of the petition for postconviction relief on 
No. 14AP-355 12 

grounds of ineffective assistance of trial counsel for failure to secure footage from security 

cameras. 

VI. Assessing Credibility of Supporting Affidavits 

{¶ 23} The fact that a petitioner's affidavit can be viewed as self-serving and legally 

insufficient on its own does not mean it can always be completely disregarded. We have 

said that, "[u]nless the petition is also supported by operative facts other than those 

contained in the petitioner's affidavit, the petition may be denied without a hearing." 

Taylor at ¶ 16. Therefore, contrary to the trial court's conclusion that the affidavits of 

appellant's aunt and brother are also self-serving and thus "immediately discredited," we 

must examine these affidavits, as well as the affidavits of the remaining affiants, to 

determine if they present sufficient operative facts in support of the averments in 

appellant's affidavit to warrant a hearing. 

{¶ 24} The Supreme Court of Ohio has provided courts guidance regarding how to 

determine the credibility of supporting affidavits in postconviction relief proceedings. 

The Supreme Court instructed that trial courts should consider all relevant factors, 

including: 

(1) whether the judge reviewing the postconviction relief 

petition also presided at the trial,4 (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, or otherwise interested 

in the success of the petitioner's efforts, and (5) whether the 

affidavits contradict evidence proffered by the defense at trial. 

Taylor at ¶ 23, citing Calhoun at 285, citing State v. Moore, 99 Ohio App.3d 748, 754-56 

(1st Dist.1994). Further, in Calhoun, the Supreme Court stated: 

Depending on the entire record, one or more of these or other 

factors may be sufficient to justify the conclusion that an 

affidavit asserting information outside the record lacks 

credibility. Such a decision should be within the discretion of 

the trial court. A trial court that discounts the credibility of 

 

4 The judge who reviewed the postconviction relief petition was the same judge who presided at trial. 

However, the averments on which we focus now were not facts presented at trial. Therefore, the judge did 

not have the opportunity to view witnesses testifying to or assess such evidence at trial. 
No. 14AP-355 13 

sworn affidavits should include an explanation of its basis for 

doing so in its findings of fact and conclusions of law, in order 

that meaningful appellate review may occur. 

Taylor at ¶ 25, citing Calhoun at 285. 

VII. Affidavits of Fatima Ali Yussuf, Hussein Ibrahim, Luuley Mohamed, 

 Mohamed Bukdow, Abdullah Aboke, and Marian Mohamed 

{¶ 25} The affidavits of Fatima Ali Yussuf, Hussein Ibrahim, Luuley Mohamed, and 

Mohamed Bukdow contain nearly identical language and appear to have been drafted by 

the same person. Furthermore, these affidavits, as well as the affidavit of Abdullah Aboke, 

state generally that the affiants "had information" to offer but do not specify what 

particular information they would have offered, nor whether the information would have 

been helpful to appellant at trial. The affidavit of Marian Mohamed establishes that the 

information she would have offered to an investigator or at trial was made known to her 

after appellant's trial. Trial counsel cannot be considered ineffective for failing to 

investigate information gathered after trial. For these reasons, we find the trial court did 

not err in not holding a hearing to determine the credibility of these six affiants. 

VIII. Affidavits of Amina Manguera, Mowlina Aboke, and Aweis Ibrahim. 

{¶ 26} In addition to his own affidavit, appellant offered the affidavits of Amina 

Manguera ("Manguera"), Mowlina Aboke ("Mowlina"), and Aweis Ibrahim ("Aweis"), 

and, in support of his claims that trial counsel was ineffective for failing to investigate, 

subpoena witnesses, and question witnesses regarding the following information: 

 That alleged victim Abdi Mohamed bragged that a robbery did not occur 

(appellant, Aweis, Manguera, Mowlina) 

 That another prosecuting witnesses stated that a robbery did not occur 

(Manguera) 

 That the prosecuting witnesses attempted to extort $10,000 from 

appellant's family in exchange for their silence at the trial (Manguera, 

Aweis, Mowlina) 

{¶ 27} Manguera is appellant's aunt, and she states that she is also the ex-wife of a 

member of the Somalilander tribe who manages their drug business. Manguera averred 

that she personally spoke with one of the alleged victims, who informed her that appellant 
No. 14AP-355 14 

had seen the drugs and money in the apartment and, therefore, they beat him and made 

up the robbery story because they were afraid he would reveal their secret. She also stated 

that the alleged victim told her that the gun used in the incident did not belong to 

appellant. Additionally, she averred that the alleged victim told her that no robbery had 

occurred and that, if the family of appellant would give the group $10,000, they would 

remain silent and make the case go away. Finally, she stated that the alleged victim did 

testify at trial against appellant and subsequently called her to apologize for doing so. 

{¶ 28} Aweis is the brother of appellant. Aweis stated that he was personally aware 

that Abdi Mohamed had been bragging at Star Coffee that he beat appellant, the member 

of another Somalian tribe, and put him in jail. He further averred that Somalilander 

witnesses approached his family attempting to extort $10,000 in exchange for their 

silence at appellant's trial. He indicated that he personally heard prosecuting witness 

Farheyo indicate that she wanted appellant to keep his mouth shut concerning her drug 

operation. Aweis made several other averments of which he claims to have had personal 

knowledge, but which we would consider to be speculation—such as his averment that his 

uncle, prosecuting witness Abdul Kadir Aden ("Aden"), implicated appellant in this crime 

in order "to avoid deportation, as he is a truck driver who transported drugs for the 

alleged Somalian victims in this incident." (Aweis Ibrahim Affidavit at No. 16.) Aweis did 

not aver that Aden personally told him this and, thus, it is not clear how he could 

personally have knowledge of this information. 

{¶ 29} The fact that Manguera and Aweis are related to appellant, and also that one 

of the prosecuting witnesses allegedly involved in the Somalilander drug operations is 

Manguera's ex-husband, are factors which point to a lack of credibility. However, the fact 

that their averments, and those of appellant, are consistent not only with the averments of 

each other but also with the averments of affiant Mowlina, points to credibility. 

Mowlina's affidavit does not indicate any relation to appellant, nor any other interest in 

his success. Mowlina averred that he is the owner of a barbershop and that prosecuting 

witness Abdi Mohamed came into his barbershop. While there, Abdi Mohamed told 

Mowlina that there had been no robbery and that the robbery had been falsely reported to 

protect themselves from appellant after he saw the drugs in the apartment. Mowlina also 

averred that Abdi Mohamed told him that he and the prosecuting witnesses had offered 
No. 14AP-355 15 

appellant's family $10,000 "to make the case go away." Mowlina made several other 

averments of which he claims to have had personal knowledge, but which we would 

consider to be speculation—such as his averment that "[Abdi] Mohamed did not like 

[appellant], who was from a different Somali tribe than his, and wanted revenge against 

him." (Mowlina Aboke Affidavit at No. 28.) He also made several general averments that 

he "had information" regarding the incident with Abdi Mohamed at Star Coffee and 

regarding the nature of the activities typically occurring at the apartment. However, he 

did not specifically state what particular information he would have offered, nor whether 

the information would have been helpful to appellant at trial. Nevertheless, his apparent 

disinterest, and the fact that his other averments were consistent with those of Manguera, 

Aweis, and appellant, lend credibility to their averments. 

{¶ 30} Also lending credibility to the averments of Mowlina, Manguera, Aweis and 

appellant is exhibit No. 15, a purported jail visitor list showing that two of the prosecuting 

witnesses, Farheyo Adbulkar and Abdi Aden, attempted to visit appellant in jail. Appellant 

himself does not aver that he had personal knowledge of the alleged extortion attempt or 

that he informed his attorney of the same. In support of this claim, however, appellant 

points to the affidavit of his brother, Aweis, who stated that he and his mother had made 

several attempts to contact trial counsel and inform him of the same—repeatedly going to 

his office, repeatedly calling and leaving messages for him, appearing at court dates, 

which ultimately were rescheduled—all to no avail because trial counsel was not present 

and did not return their phone calls. This assertion that trial counsel was unavailable is 

consistent with that averred by appellant himself. Appellant stated that, during the time 

he was being represented by counsel, counsel was suffering from cancer and often was 

coughing and having difficulty breathing on the five occasions they did meet. As noted 

above, appellant also presents the affidavits of Manguera and Mowlina to support the 

claim that witnesses attempted to extort his family. The fact that these specific averments 

of the affiants are not rebutted by any of the evidence presented at trial also lends 

credibility to these affiants. 

{¶ 31} The state argues that the averments of the witnesses summarized above are 

hearsay and, therefore, would not have been admissible at trial. The state also argues that 

the affidavits do not show that any deficiency on the part of trial counsel resulted in 
No. 14AP-355 16 

prejudice to appellant. While it may be true that the averments constituted hearsay, 

Farheyo and Aden testified at trial, and appellant's counsel could have cross-examined 

them regarding the same. Counsel likewise could have subpoenaed Abdi Mohammed and 

examined him. Such cross-examination, in particular with regard to the jail visitor list, 

could have been damaging to the credibility of all the witnesses. 

{¶ 32} The trial court did not address appellant's extortion claims, nor the 

purported jail visitor list. The state likewise did not address the jail visitor list and, as to 

the extortion claims, only argued that the claim is unpersuasive and not credible. 

{¶ 33} Taking all of this into consideration, we find that the jail visitor list, along 

with the consistent averments of the witnesses summarized above, most particularly those 

of Mowlina, together set forth sufficient operative facts, which, if believed, would establish 

substantive grounds that trial counsel had substantially violated at least one of a defense 

attorney's essential duties to his client. We also find that, if believed, these averments 

could implicate all of the state's prosecuting witnesses (victims stated no robbery actually 

occurred; victims tried to extort money for their silence). Such implication of all the 

prosecuting witnesses could have resulted in a different outcome at trial, thereby 

prejudicing appellant. Therefore, we find the trial court erred in not holding a hearing to 

determine the credibility of the affiants as to these averments. 

IX. Mitigating Evidence of Penalty

{¶ 34} Appellant claimed ineffective assistance of counsel for failure to call 

witnesses to supply information on his behalf for the purpose of mitigation of his 

sentence. He claims that the witnesses would have testified that he is a devoted father of 

two young sons and a hard worker employed in the construction trade. He suggests his 

mother would have testified that he came to the United States at the age of seven and was 

a good student, athlete, and chess club member while attending school. He presented the 

affidavits of Manguera and Aweis in support of his own averment regarding the same. 

{¶ 35} Generally, a defense counsel's decision as to what mitigating evidence to 

present during the penalty phase of a capital trial is a matter of trial strategy. Campbell at 

¶ 37, citing State v. Keith, 79 Ohio St.3d 514, 530 (1997), cert. denied, 523 U.S. 

1063; Hessler at ¶ 42. Defense counsel has a duty to investigate mitigating circumstances 

in order to make informed tactical decisions about which information would be most 
No. 14AP-355 17 

helpful to a client's case. State v. Jackson, 10th Dist. No. 01AP-808, 2002-Ohio-3330, 

¶ 84, citing State v. Johnson, 24 Ohio St.3d 87, 90 (1986). However, out-of-record 

evidence that is merely cumulative of, or alternative to, other mitigation evidence defense 

counsel presented does not provide substantive grounds for a claim of ineffective 

assistance of counsel at mitigation. Hessler; State v. Combs, 100 Ohio App.3d 90, 98, 105 

(1st Dist.1994). Further, decisions regarding what witnesses to call falls within the 

purview of trial strategy and, absent prejudice, generally will not constitute ineffective 

assistance of counsel. Campbell at ¶ 38, citing Hessler at ¶ 42. To demonstrate prejudice, 

a petitioner must show not only that there was mitigating evidence that counsel failed to 

present, but also that "there is a reasonable probability that the evidence would have 

swayed the jury to impose [a lesser sentence]." Keith at 536. We find that appellant 

himself informed the court that he had a family. Furthermore, although appellant's 

counsel did not present all the mitigating evidence Manguera and Aweis presented, we 

cannot say there was a reasonable probability that the evidence would have swayed the 

jury to impose a lesser sentence. Therefore, we affirm the trial court's denial of the 

petition for postconviction relief without a hearing on grounds of ineffective assistance of 

trial counsel for failure to raise mitigating evidence at sentencing. 

X. Cumulative Error

{¶ 36} Finally, appellant claimed the cumulative effect of the errors alleged in his 

postconviction petition warrant the grant of a new trial and sentencing hearing or, at a 

minimum, a postconviction evidentiary hearing on the grounds presented in the petition. 

Pursuant to the doctrine of cumulative error, a judgment may be reversed where the 

cumulative effect of errors deprives a defendant of his constitutional rights, even though 

the errors individually do not rise to the level of prejudicial error. State v. Garner, 74 Ohio 

St.3d 49 (1995), cert. denied, 517 U.S. 1147 (1996); State v. DeMarco, 31 Ohio St.3d 191 

(1987), paragraph two of the syllabus.

{¶ 37} Because we have reversed the trial court on its denial of a hearing with 

regard to Manguera, Aweis, Mowlina, and appellant as to the specific averments 

summarized at ¶ 26, we find this claim to be moot and will not address it at this time. 
No. 14AP-355 18 

XI. Conclusion

{¶ 38} For the foregoing reasons, we overrule in part and sustain in part 

appellant's assignment of error. Therefore, we affirm in part and reverse in part the 

judgment of the Franklin County Court of Common Pleas and remand this case to that 

court for further proceedings, in accordance with law and consistent with this decision. 

Judgment affirmed in part, reversed 

 in part, and cause remanded. 

 

KLATT and O'GRADY, concur. 

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