[Cite as State v. Castellon, 2023-Ohio-4215.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 112522

v. :

ESTEPHEN CASTELLON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: November 22, 2023 

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-16-610907-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Anthony T. Miranda, Assistant Prosecuting 

Attorney, for appellee.

Estephen Castellon, pro se. 

EILEEN A. GALLAGHER, P.J.:

Defendant-appellant Estephen Castellon appeals the trial court’s 

denial of his motion for postconviction relief. For the reasons that follow, we affirm.
I. Factual Background and Procedural History

Castellon is serving a seven-year prison sentence imposed after the 

trial court found him guilty of rape (R.C. 2907.02(A)(2)) and kidnapping (R.C. 

2905.01(A)(4)) following a bench trial. This court previously summarized the 

underlying facts of the case as follows:

The following facts were adduced at trial. The victim, A.I., lived with 

her mother and Castellon, her mother’s boyfriend. The incident giving 

rise to the charges occurred in August 2016, at which time A.I. was 18 

years old.

A.I. testified that, on the day at issue, she arrived home from work 

sometime after midnight. As she was coming in the house, Castellon 

was leaving to go to a bar. Upon entering the house, A.I. saw her 

mother sleeping on the couch in the living room.

A.I. testified that her bedroom was in the attic of the house, and that it 

was hot in the attic during the summer months. As such, A.I. went to 

her mother’s bedroom to sleep in her mother’s bed. A.I. was awakened 

when she heard Castellon return home. He came into the mother’s 

bedroom, which was where he normally slept, and, upon finding A.I. 

there, told her he would go sleep on the couch. 

A.I. testified that she fell back asleep, but was awakened again. This 

time, she noticed that she was partially undressed, and that someone 

was engaging in sexual conduct with her. She was on her stomach and 

the person was on her legs and she could not move. At first A.I. thought 

someone had broken into the house and was scared. She did not want 

to move because she was afraid they would hurt her mother or son who 

were also in the house. After a couple of minutes, she noticed that the 

person was being “gentle.” The person then engaged in another form 

of sexual conduct with her. At that time, she realized that the person 

was Castellon — he was trying to have further sexual contact with her 

and was pulling her legs towards the edge of the bed. A.I. told him to 

stop, which he did. 

A.I. left the bedroom and contacted a friend, who came to the house; 

the two locked themselves in the attic. The next day, A.I. told her 

mother what had happened. She went to the police the following day 

and provided them with the clothes she had been wearing at the time 
of the incident. A police officer drove A.I. to the hospital. No rape kit 

was administered because it was a couple of days after the fact and A.I. 

had showered since the incident. 

A.I. testified that the following day, Castellon texted her, saying “I’m so 

sorry.” According to A.I., at the time of the incident, her mother was 

about 70 pounds heavier than she was, and so it would not have been 

easy for Castellon to confuse the two women. A.I.’s mother testified 

that Castellon told her that he blacked out and did not remember what 

had happened.

State v. Castellon, 8th Dist. Cuyahoga No. 106813, 2019-Ohio-628, ¶ 7–12.

The trial court, as factfinder, found Castellon guilty of two counts of 

rape and one count of kidnapping with a sexual motivation specification. The court 

acquitted Castellon of one count of attempted rape.

In the time between the court’s verdict and sentencing, Castellon filed 

numerous pro se motions and “notices” with the trial court, requesting various 

forms of relief. Among these, Castellon filed a “demand to dismiss case due to 

speedy trial violation” and a “demand for time tolling calculations of 3 days for each 

1 day in custody pursuant to O.R.C. 2945.71.” Castellon also filed a “demand for 

acquittal due to ineffective assistance of defense counsel for failing to subpoena the 

federal technicia[n] and the state technicia[n] that conducted data dump files of 

defendant’s cell phone” and a “motion for new trial due to newly discovered evidence 

of a cell phone data drop transcript authored by Brian E. Cooney of the Federal 

Bureau of Investigation.” In the latter motion, Castellon stated that local police 

investigators “learned that Castellon’s phone would have to be transfer[r]ed to 

Cleveland FBI office and then transfer[r]ed to the [FBI’s] Quantico lab.” He said 

that police later retrieved the cell phone from the FBI when the FBI indicated “that 
the phone was ready to be picked up.” Castellon argued that this “chain of events 

gave rise to a cell phone data drop transcript” authored by an FBI employee, which 

he said had not been produced in discovery.

As our court previously summarized:

The trial court acknowledged the [pro se] motions at the sentencing 

hearing, telling Castellon that “Ohio law does not allow dual 

representation. You have an assigned attorney * * * to represent you, 

which means that all of these motions can be stricken from the record 

because they were not filed by [your assigned attorney].” The trial court 

asked Castellon whether he wanted his assigned attorney to represent 

him at sentencing, to which he responded “no * * * unless I am given 

the opportunity to retain different counsel.” The trial court denied 

Castellon’s request for different counsel.

The trial court then engaged in colloquy with Castellon to determine if 

he was knowingly, intelligently, and voluntarily giving up his right to 

counsel. After its colloquy with Castellon, the court denied his request 

for self-representation. Counsel told the court that she did not wish to 

adopt and argue any of the pro se motions Castellon had filed.

Castellon, 2019-Ohio-628, at ¶ 5–6.

The trial court disregarded the pro se filings and sentenced Castellon 

to seven years in prison. Castellon filed a direct appeal, through new counsel, in 

which he argued the following five assignments of error: 

I. There was insufficient evidence produced at trial to support a 

finding of guilt on all counts.

II. The appellant was found guilty against the manifest weight of the 

evidence.

III. Appellant was denied the effective assistance of counsel in his 

trial.

IV. The cumulative errors committed during the trial deprived the 

appellant of a fair trial.
V. Appellant was denied his right to represent himself at 

sentencing. 

After oral argument, Castellon filed a pro se motion to file a 

supplemental brief in his direct appeal. He argued that his appellate counsel failed 

to set forth several assignments of error that he wanted included in his appeal, 

including, among other things: (1) there was prosecutorial misconduct in that 

evidence from his cell phone was “missing,” the state never produced “the chain of 

custody” over his cell phone and body-camera recordings were deleted; (2) his trial 

counsel was ineffective; (3) the state falsely claimed that he was a fugitive when “it 

[was] well documented that [he] had relocated to California and established 

residency” before the alleged rape and his defense counsel “had [his] proof of 

address but chose not to present it”; and (4) he was denied his constitutional right 

to a speedy trial.

This court denied the motion to file a supplemental brief. State v. 

Castellon, 8th Dist. Cuyahoga No. 106813, Motion No. 525770 (Feb. 25, 2019). The 

court overruled the assignments of error that were originally raised in the appeal 

and affirmed the convictions and sentence. Castellon, 2019-Ohio-628, at ¶ 56. 

Castellon thereafter applied to reopen the appeal, arguing that his 

appellate counsel was ineffective. He argued, among other things, that he was 

denied his constitutional right to a speedy trial. This court denied the application, 

finding that “a substantive review of the docket * * * fails to demonstrate a violation 

of Castellon’s right to a speedy trial.” State v. Castellon, 8th Dist. Cuyahoga No. 
106813, 2019-Ohio-3652, ¶ 16–18. The Ohio Supreme Court declined to accept 

jurisdiction over Castellon’s appeal from that judgment. 12/17/2019 Case 

Announcements, 2019-Ohio-5193.

On March 27, 2019, Castellon filed a “petition to vacate or set aside 

judgement [sic] of conviction or sentence” in the trial court. In that petition, he 

argued that he was entitled to postconviction relief under R.C. 2953.21 because (1) 

the state allegedly failed to turn over certain evidence related to his cell phone, 

certain police body-worn camera recordings and recorded jail calls, and falsely 

“painted the picture that he was running” from the charges; (2) his trial counsel was 

ineffective for failing to investigate the evidence he said was missing or fabricated 

and “failed to present proof of [his] California address.”

The trial court summarily denied Castellon’s petition. Castellon did 

not appeal that judgment.

In April 2020, Castellon filed a pro se petition in the U.S. District 

Court for the Northern District of Ohio seeking a writ of habeas corpus under 28 

U.S.C. 2254, arguing — among other things — that his trial counsel was ineffective 

for failing to challenge “manipulated” cell-phone data, missing body-camera footage 

and jail calls, and for failing to “admit proof of address to impeach implication of 

flight.” Castellon v. Forshey, N.D. Ohio No. 1:20-CV-00940-JRK, 2023 U.S. Dist. 

LEXIS 167433, 16 (Apr. 28, 2023). He also argued that the state engaged in 

prosecutorial misconduct by presenting “post-indictment evidence” in the form of 

jail-call recordings, “manipulat[ing] the content of the calls” and by “[t]he 
warrantless breach of [his] cell phone, manipulation of the chain of custody and lack 

of testimony from the technician who supposedly performed the data dump * * *.” 

Id. at 17. He also argued that he was denied his constitutional right to a speedy trial. 

Id. at 18. 

Castellon then moved for a stay of the federal habeas petition, arguing 

that he received a federal Freedom of Information Act (“FOIA”) disclosure from the 

U.S. Department of Justice that contained additional evidence he needed to present 

in state court through a successive postconviction petition. Castellon v. Forshey, 

N.D. Ohio No. 1:20 CV 940, 2023 U.S. Dist. LEXIS 165927, 6 (Sept. 19, 2023).

The federal trial court denied the stay and dismissed his habeas 

petition, finding his claims to be either defaulted or meritless. Id. at 25.

On February 10, 2023, Castellon filed the petition at issue in this 

appeal — a successive petition for postconviction relief pursuant to R.C. 2953.23. In 

the petition, Castellon raised the following arguments:

I. Due to constitutional speedy trial violation(s) Castellon was 

denied his Sixth and Fourteenth Amendment right(s).

II. Prosecutorial misconduct

III. The state abused the grand jury process introducing post 

indictment evidence

IV. The structure of the trial collapsed when the defendant was 

denied confrontation and compulsory process

V. Ineffective assistance of counsel

VI. Cumulative errors
The state opposed the petition. On February 22, 2023, the trial court 

summarily denied the petition.

Castellon appealed, raising the following six assignments of error, 

which mirror the arguments he made in his petition:

First Assignment of Error

Due to Constitutional speedy trial violation(s) Castellon was denied his 

Sixth and Fourteenth Amendment right(s)

Second Assignment of Error

Prosecutorial Misconduct

Third Assignment of Error

The State abused the grand jury process introducing post indictment 

Evidence

Fourth Assignment of Error

The structure of the trial collapsed when the Defendant was denied 

Confrontation and Compulsory process

Fifth Assignment of Error

Ineffective assistance of Counsel

Sixth Assignment of Error

Cumulative Errors

II. Law and Analysis

The trial court was without jurisdiction to consider Castellon’s 

untimely and successive petition because he was not unavoidably prevented from 

discovering the facts on which his arguments are based. He raised or could have 
raised these arguments (or permutations of them) in his direct appeal or in his 

earlier petition. Moreover, his arguments are barred by res judicata.

Pursuant to R.C. 2953.21(A)(1)(a)(i), a 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, asking the court to vacate or set aside the judgment 

or sentence or to grant other appropriate relief. Pursuant to R.C. 2953.21(A)(2), 

petitions for postconviction relief under R.C. 2953.21(A)(1)(a)(i) must generally be 

filed within 365 days after the trial transcript is filed in the direct appeal of the 

conviction at issue. The trial transcript in Castellon’s direct appeal was filed on 

March 26, 2018. Castellon’s second petition for postconviction relief was successive 

and untimely under R.C. 2953.21(A).

A trial court lacks jurisdiction over an untimely or successive petition 

for postconviction relief unless the petition satisfies the criteria set forth under R.C. 

2953.23(A)(1) or (2). R.C. 2953.21(A); R.C. 2953.23(A); State v. Bethel, 167 Ohio 

St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, ¶ 20; State v. Apanovitch, 155 Ohio 

St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, ¶ 36–38 (“[A] petitioner’s failure to 

satisfy R.C. 2953.23(A) deprives a trial court of jurisdiction to adjudicate the merits 
of an untimely or successive postconviction petition.”). R.C. 2953.23(A)(1)1 states, 

in relevant part:

[A] court may not entertain a petition filed after the expiration of the 

period prescribed in [R.C. 2953.21(A)] or a second petition or 

successive petitions for similar relief on behalf of a petitioner unless

* * * [b]oth of the following apply:

(a) Either the petitioner shows that the petitioner was unavoidably 

prevented from discovery of the facts upon which the petitioner must 

rely to present the claim for relief, or, subsequent to the period 

prescribed in division (A)(2) of section 2953.21 of the Revised Code or 

to the filing of an earlier petition, the United States Supreme Court 

recognized a new federal or state right that applies retroactively to 

persons in the petitioner’s situation, and the petition asserts a claim 

based on that right.

(b) The petitioner shows by clear and convincing evidence that, but for 

the constitutional error at trial, no reasonable factfinder would have 

found the petitioner guilty of the offense of which the petitioner was 

convicted[.]

“Res judicata generally bars a convicted defendant from litigating a 

postconviction claim that was raised or could have been raised at trial or on direct 

appeal.” Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 193 N.E.3d 470, at ¶ 17, citing 

State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the 

syllabus; State v. Hatton, Slip Opinion No. 2022-Ohio-3991, ¶ 22 (“Res judicata 

applies to * * * petitions for postconviction relief.”), citing State v. Reynolds, 79 Ohio 

St.3d 158, 679 N.E.2d 1131 (1997). Res judicata operates to bar successive petitions 

for postconviction relief that raise claims that were or could have been raised on 

1 R.C. 2953.23(A)(2), which applies to offenders for whom DNA testing was 

performed under R.C. 2953.71 through 2953.81 or former R.C. 2953.82, is inapplicable 

here.
direct appeal or in a prior petition. See, e.g., State v. Waver, 8th Dist. Cuyahoga No. 

108820, 2020-Ohio-2724, ¶ 32; see also State v. Mack, 8th Dist. Cuyahoga No. 

101261, 2018-Ohio-301, ¶ 15 (“The doctrine of res judicata prevents repeated attacks 

on a final judgment for issues that were or could have been previously litigated.”); 

State v. Bridges, 8th Dist. Cuyahoga Nos. 103634 and 104506, 2016-Ohio-7298, 

¶ 33 (“[A] postconviction petition does not provide a petitioner a second opportunity 

to litigate his or her conviction.”).

We review a decision to grant or deny a petition for postconviction 

relief for abuse of discretion. Hatton at ¶ 38, citing State v. Gondor, 112 Ohio St.3d 

377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 51–52, 58. However, whether a trial court 

has subject-matter jurisdiction to entertain an untimely or successive petition for 

postconviction relief is a question of law, which we review de novo. Hatton at ¶ 38, 

citing Apanovitch at ¶ 24.

In this case, Castellon’s petition did not satisfy the requirements of 

R.C. 2953.23(A)(1). Castellon’s petition fails to show that he was unavoidably 

prevented from discovering the facts on which the claims in his petition were based, 

that any new federal or state right was recognized subsequent to his filing of the 

earlier petition or that, but for the alleged constitutional error, no reasonable 

factfinder would have found him guilty of the offenses of which he was convicted. 

This is not a case involving new claims or issues that have not been litigated, or could 

not have been litigated, before. Compare Hatton at ¶ 25.
Castellon argues that his petition was based on newly discovered 

information obtained through a FOIA disclosure made by the U.S. Department of 

Justice on November 7, 2022. He attached the FOIA response to his petition; the 

disclosure includes a search warrant issued by the Cuyahoga County Court of 

Common Pleas authorizing the search of Castellon’s cell phone and internal records 

and communications of the Federal Bureau of Investigation related to the FBI’s 

assistance in unlocking his cell phone. Castellon argues that these documents led 

him to discover constitutional violations that he was unavoidably prevented from 

discovering sooner.

The state responds that Castellon knew in advance of trial that the 

FBI had assisted in unlocking his cell phone and that his phone was searched 

pursuant to a warrant. It argues that Castellon’s petition was not based on any newly 

discovered evidence, that his claims are barred by res judicata and that the claims 

are substantively meritless.

We consider each of Castellon’s assignments of error in turn.

A. First Assignment of Error – Speedy Trial

Castellon asks this court to “dismiss the entire indictment based on 

the violation(s) of his constitutionally guaranteed right to a speedy trial, as the 

amount of evidence that was originally available at the time of indictment that is 

now either missing or destroyed has extremely prejudiced” him.

In support of his argument that he was unavoidably prevented from 

making this argument sooner, Castellon points to two documents outside the 
record: (1) a document from the Riverside County (California) Sheriff’s Department 

that states that Castellon was taken into custody on December 5, 2016, and (2) the 

FBI’s FOIA response.

Castellon seems to be arguing that the state knew that he was not a 

fugitive but treated him as such to manipulate the speedy-trial clock, then secured a 

warrant that allowed them an indefinite amount of time to search his phone for the 

purpose of further delaying trial.

Castellon was not unavoidably prevented from asserting these 

arguments sooner. He knew that he was arrested on December 5, 2016, in 

California, based on these allegations. He also knew — from a police report 

produced in discovery that is also attached to his successive petition for 

postconviction relief — that investigators secured a warrant to search his phone in 

January 2017, transferred the phone to the FBI for assistance and received it back 

unlocked in May 2017. Even if Castellon did not have a copy of the actual warrant 

until November 2022, he knew that there had been a warrant and knew the 

timetable and chain of custody of how that warrant was executed. Thus, he was not 

“unavoidably prevented” from arguing that the means of searching his phone 

resulted in a deprivation of his constitutional right to a speedy trial.

Indeed, Castellon has raised a constitutional-speedy-trial argument 

before — he raised it in his pro se filings before sentencing, then in his motion to file 

a supplemental brief in the direct appeal, then in his application to reopen that 

appeal and then again in his federal habeas case. Because Castellon was not 
unavoidably prevented from discovering the facts on which his speedy-trial 

argument is based, the trial court was without jurisdiction to consider the argument 

in this successive and untimely petition.

Moreover, the argument is barred by res judicata. This court 

previously considered Castellon’s constitutional-speedy-trial argument and found 

that “a substantive review of the docket * * * fails to demonstrate a violation of 

Castellon’s right to a speedy trial.” State v. Castellon, 8th Dist. Cuyahoga No. 

106813, 2019-Ohio-3652, ¶ 16–18.

We, therefore, overrule Castellon’s first assignment of error.

B. Second Assignment of Error – Prosecutorial Misconduct

Castellon argues that the state suppressed materially exculpatory 

evidence from him. He says the state suppressed a DMV record that showed that he 

established a California residence in June 2016, that “Detective Mladek knew this” 

and that the state continued to allege that his buying a plane ticket to California 

constituted evidence of consciousness of guilt. He also says thatthe state suppressed 

the search warrant that had been obtained to search his cell phone. He further 

claims that police deleted text messages from his cell phone while he was in custody

and destroyed two body-camera recordings. Finally, he claims that the state 

indicted him without securing a DNA sample from the victim’s romantic partner for 

comparison to DNA recovered in the case.

Castellon again relies on only two categories of documents in support 

of his argument that he was unavoidably prevented from making these claims 
sooner: (1) documents he says show that he established a residency in California 

before the rape and (2) the FOIA response, which included the search warrant that 

he knew about but apparently did not have a copy of before trial. The other citations 

in the petition are to evidence in the trial record.

Castellon could have, and has, previously argued that the state 

improperly cast him as a fugitive. He obviously knew the circumstances of his 

residency and work in California long before he received the federal government’s 

FOIA response. He raised this argument (or permutations of it) in his pro se motion 

to file a supplemental brief in his direct appeal, then in his federal habeas case and 

then again in his first petition for postconviction relief.

The same can be said about Castellon’s argument that the state 

allegedly deleted text messages from his cell phone and deleted body-camera 

recordings. Castellon obviously knew what was on his own cell phone long before 

the FOIA response and his trial counsel cross-examined state witnesses about the 

circumstances of the state’s deletion of the body-camera recordings at trial. Indeed, 

Castellon raised these arguments in his pro se motion to file a supplemental brief in 

his direct appeal, in his federal habeas case and in his first petition for 

postconviction relief.

Similarly, no new evidence outside the record supports Castellon’s 

argument that the state acted inappropriately in securing an indictment before 

obtaining a DNA reference sample from the victim’s romantic partner. He could 
have raised that argument at trial, in the direct appeal or in his first petition for 

postconviction relief.

While Castellon says that he was never provided a copy of the search 

warrant used to search his cell phone until the FOIA response, he was well aware 

that the warrant existed before trial. The fact that the warrant existed is reflected in 

a police report produced by the state in discovery. Castellon could have raised an 

argument regarding the state’s alleged suppression of the warrant at trial, in the 

direct appeal and in his first petition for postconviction relief.

Because Castellon was not unavoidably prevented from discovering 

the facts on which these arguments are based, the trial court was without jurisdiction 

to consider the arguments in this successive and untimely petition. Moreover, 

because Castellon raised several of these arguments in his first petition for 

postconviction relief and did not appeal the trial court’s denial of his first petition, 

and he could have raised all of these arguments in prior proceedings, those

arguments are barred by res judicata.

We, therefore, overrule Castellon’s second assignment of error.

C. Third Assignment of Error – Post-Indictment Evidence

Castellon argues that there was an abuse of the grand-jury process 

because the state continued to possess his cell phone for purposes of searching it 

pursuant to the warrant, even after he was indicted. Castellon cites no evidence 

outside the record in support of this claim. To the extent that the claim is 

purportedly based on the FOIA disclosure, the same reasoning applies to this 
assignment of error as applies to his first: Castellon was well aware, before trial, of 

how investigators searched his phone and the timeline for doing so. He was not 

unavoidably prevented from making this argument at trial, in the direct appeal or in 

his first petition for postconviction relief. Indeed, he raised this “post-indictment 

evidence” argument in his first petition for postconviction relief.

Because Castellon was not unavoidably prevented from discovering 

the facts on which this argument is based, the trial court was without jurisdiction to 

consider the arguments in this successive and untimely petition. Moreover, this

argument is also barred by res judicata.

We, therefore, overrule Castellon’s third assignment of error.

D. Fourth Assignment of Error – Confrontation and Compulsory 

Process

Castellon seems to argue that he was denied the right of compulsory 

process because (1) the police detective who testified about the contents of his cell 

phone was not qualified to analyze the contents of the phone, (2) it was not 

sufficiently established at trial how the data extraction of the phone was performed 

and (3) the testimony of the person who actually performed the extraction was 

“crucial” to this case but that person did not testify. He does not point to any 

evidence outside the record in support of this claim and makes no attempt to show 

how he was unavoidably prevented from raising this argument sooner. Indeed, he 

raised this argument in his pro se filings before sentencing.

Because Castellon was not unavoidably prevented from asserting 

these arguments in his direct appeal or in his earlier petition for postconviction 
relief, the trial court was without jurisdiction to consider the arguments in this 

successive and untimely petition. Moreover, the argument is barred by res judicata.

We, therefore, overrule Castellon’s fourth assignment of error.

E. Fifth Assignment of Error – Ineffective Assistance of Counsel

Castellon argues that his trial counsel was ineffective by (1) failing to 

call the translator who translated the jail calls or move to suppress the jail calls 

before trial, (2) failing to investigate or move to suppress the warrant for the cell 

phone or the evidence extracted from the cell phone and failing to adequately raise 

the issue of the allegedly missing text messages and (3) failing to adequately address 

the issue of the missing body-camera recordings.

Castellon has raised all of these arguments before, either in his 

presentence pro se motions, in the direct appeal or in his first petition for 

postconviction relief. His petition fails to show that he was unavoidably prevented 

from making these arguments and almost every citation in support of these 

arguments is a citation to the record, not some piece of newfound evidence outside 

the record.

Because Castellon was not unavoidably prevented from discovering 

the facts on which these arguments are based, the trial court was without jurisdiction 

to consider the arguments in this successive and untimely petition. Moreover, the 

arguments are barred by res judicata.

We, therefore, overrule Castellon’s fifth assignment of error.
F. Sixth Assignment of Error – Cumulative Error

Castellon argues that “the cumulative effect and prejudice of these 

intersecting constitutional violations” as stated in his first five assignments of error 

“had a chilling effect on the defendant’s due process * * *.” As discussed above, 

Castellon was not unavoidably prevented from raising any of his other arguments at 

trial, in the direct appeal or in his first petition for postconviction relief. Thus, he 

was not unavoidably prevented from raising the argument that those errors, taken 

together, warrant a new trial.

We, therefore, overrule Castellon’s sixth assignment of error.

III. Conclusion

Castellon’s second petition for postconviction relief merely rehashes 

arguments that he has previously raised. He has not shown that he was unavoidably 

prevented from making these arguments in his direct appeal or in a prior petition 

for postconviction relief. Because Castellon did not make the requisite showing 

under R.C. 2953.23(A)(1), the trial court lacked jurisdiction to consider his petition 

for postconviction relief and properly denied it.

Having overruled Castellon’s assignments of error for the reasons 

stated above, we affirm.

It is ordered that the appellee recover from the appellant the costs herein 

taxed.

It is ordered that a special mandate issue out of this court directing the 

Cuyahoga County Court of Common Pleas 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.

_________________________________ 

EILEEN A. GALLAGHER, PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., and

MICHAEL JOHN RYAN, J., CONCUR