[Cite as State v. Bulls, 2015-Ohio-5094.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

STATE OF OHIO 

 Appellee 

 v. 

DWAYNE M. BULLS 

 Appellant 

C.A. No. 27713 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CR 12 12 3518 

DECISION AND JOURNAL ENTRY 

Dated: December 9, 2015 

 

SCHAFER, Judge. 

{¶1} Defendant-Appellant, Dwayne Bulls, appeals the judgment of the Summit County 

Court of Common Pleas denying his request for post-conviction relief. For the reasons that 

follow, we affirm. 

I. 

{¶2} After a jury trial, Bulls was convicted on one count of rape in violation of R.C. 

2907.02(A)(1)(b). The victim in this matter was Bulls’ 11-year old stepdaughter. The facts 

underlying Bulls’ conviction are more fully described in our opinion resolving Bulls’ direct 

appeal. See State v. Bulls, 9th Dist. Summit No. 27029, 2015-Ohio-276, ¶ 8-13, 19-22. The trial 

court subsequently sentenced Bulls to a term of life imprisonment with the possibility of parole 

after 25 years. On direct appeal, we affirmed Bulls’ conviction and sentence. Id. at ¶ 28. The 

Supreme Court of Ohio declined to accept Bulls’ appeal. State v. Bulls, 143 Ohio St.3d 1442, 

2015-Ohio-3427. 
2 

 

{¶3} While his direct appeal was pending before this Court, Bulls filed a timely 

petition for post-conviction relief in the trial court. His petition asserted three grounds for relief. 

The first two grounds related to the failure of Bulls’ trial counsel to obtain records that would 

purportedly show the minor victim’s propensity to lie. Bulls alleged that this failure amounted to 

ineffective assistance of counsel that prejudiced his defense. The third ground for relief was that 

the State possibly withheld information from Bulls during discovery in violation of Brady v. 

Maryland, 373 U.S. 83 (1963). Based on these allegations, Bulls requested that the trial court 

vacate his conviction or, in the alternative, allow him to conduct additional discovery and present 

his petition at an evidentiary hearing. 

{¶4} Bulls’ new counsel executed an affidavit that was attached to the petition for postconviction relief. In it, the new counsel averred that he reviewed the file of Bulls’ trial counsel 

and “noticed that a number of items were missing” including social service records, school 

records, “and other records that are key to the presentation of a defense[.]” The affidavit also 

includes new counsel’s conclusion that “[t]he failure to obtain these records was prejudicial to [] 

Bulls’ defense.” As to the possible Brady violations, new counsel attested that he was aware of 

two other cases involving the Summit County Prosecutor’s Office in which Brady violations led 

to the overturning of convictions. 

{¶5} Without holding a hearing, the trial court denied Bulls’ petition for postconviction relief. The trial court found as follows regarding Bulls’ first two asserted grounds for 

relief: 

[Bulls] has not submitted any evidence supporting his argument that he received 

ineffective assistance of counsel. [Bulls’] new attorney doesn’t point to any 

evidence outside the record. He only suggests that such evidence might exist. In 

fact, some of the statements made in [new counsel]’s affidavit are completely 

irrelevant to the court’s determination of whether [Bulls] received ineffective 

assistance of counsel. 
3 

 

The trial court similarly rejected Bulls’ third asserted ground for relief, the possibility of a Brady 

violation, as “merely speculative.” 

{¶6} Bulls timely appealed the denial of his post-conviction relief petition, raising one 

assignment of error for our review. 

II. 

Assignment of Error 

The trial court erred when it granted the State’s motion to dismiss 

Appellant’s post[-]conviction petition, in violation of Section 2953.21 et. [sic] 

seq[.] of the Ohio Revised Code; Article One, Section Sixteen of the Ohio 

Constitution; and the Fifth and Fourteenth Amendments to the United States 

Constitution. 

 

{¶7} In his sole assignment of error, Bulls argues that the trial court erroneously denied 

his petition for post-conviction relief. His position on appeal is that the petition sufficiently 

asserted two bases for relief: ineffective assistance of counsel and possible Brady violations. We 

disagree. 

A. Standard for Post-Conviction Relief 

{¶8} We review the trial court’s denial of a post-conviction relief petition for an abuse 

of discretion. State v. Jones, 9th Dist. Summit No. 27294, 2014-Ohio-5784, ¶ 9. An abuse of 

discretion implies the court’s decision is arbitrary, unreasonable, or unconscionable. Blakemore 

v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying this standard, a reviewing court is 

precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio 

State Med. Bd., 66 Ohio St.3d 619, 621 (1993). 

{¶9} A convicted defendant may petition the trial court to vacate his conviction on the 

basis that it is void or voidable under the United States Constitution or the Ohio Constitution. 

R.C. 2953.21(A)(1). The defendant “is not automatically entitled to a hearing” on his petition, 
4 

 

State v. Calhoun, 86 Ohio St.3d 279, 282 (1999), and the “trial court has a gatekeeping role as to 

whether a defendant will even receive a hearing,” State v. Gondor, 112 Ohio St.3d 377, 2006-

Ohio-6679, ¶ 51. In light of this gatekeeping role, the Supreme Court of Ohio has previously 

declared that “a trial court properly denies a defendant’s 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 petitioner set forth sufficient 

operative facts to establish substantive grounds for relief.” Calhoun at paragraph two of the 

syllabus; accord State v. McNeill, 137 Ohio App.3d 34, 40 (9th Dist.2000) (“A petitioner for 

post-conviction relief has an initial burden of providing evidence of sufficient operative facts to 

demonstrate a cognizable claim of constitutional error.”). Moreover, to obtain post-conviction 

relief and avoid the preclusive effect of res judicata, a petitioner must present claims in his 

petition that are based on evidence outside of the original record that existed during direct 

appellate proceedings. See McNeill at 40 (“[A] petition for post-conviction relief may defeat the 

res judicata bar only if its claims are based on evidence de hors the record.”). 

{¶10} We address the three grounds asserted in Bulls’ petition for post-conviction relief 

in turn. Since Bulls’ first two grounds both implicate his ineffective assistance of counsel 

argument, we address them together. 

B. First and Second Grounds: Ineffective Assistance of Counsel 

{¶11} When reviewing a trial court’s denial of post-conviction relief petition that is 

predicated on ineffective assistance of counsel, we must consider the underlying legal standard. 

State v. Evans, 9th Dist. Medina No. 12CA0044-M, 2013-Ohio-1216, ¶ 8. To establish 

ineffective assistance of counsel, a defendant must show that his trial counsel’s performance was 

deficient and that the deficient performance affected the outcome of trial. Strickland v. 
5 

 

Washington, 466 U.S. 668, 687 (1984). We addressed a trial court’s denial of a post-conviction 

relief petition asserting ineffective assistance of counsel in State v. Kiley, 9th Dist. Lorain No. 

12CA010254, 2013-Ohio-634. There, the petitioner argued that he was denied the effective 

assistance of counsel since trial counsel failed to call certain witnesses. But, the petitioner’s 

affidavits in support of his petition were “conclusory in nature and lack[ed] specific information 

to support [the petitioner]’s assertions.” Id. at ¶ 11. Specifically, we noted that “[t]he affidavits 

of the proposed witnesses simply indicate[d] that they have information that will exonerate [the 

petitioner] but do not indicate what information they have or how it would exonerate [the 

petitioner].” Id. at ¶ 12. As a result, we concluded that the petitioner “ha[d] not presented 

sufficient facts demonstrating that he was prejudiced by his trial counsel’s failure to * * * call 

witnesses” and we determined that the trial court did not abuse its discretion by denying the 

petition without a hearing. Id. at ¶ 13. 

{¶12} Bulls only offered the affidavit of his new counsel in support of his petition for 

post-conviction relief. Like the affidavits in Kiley, the affidavit in this matter is conclusory and 

fails to state specific information regarding the claimed ineffectiveness of Bulls’ trial counsel. 

Bulls’ new counsel simply averred that there were some records missing in the file of Bulls’ trial 

counsel and that those records would aid Bulls’ defense. We cannot determine from such bare 

assertions whether these missing records even exist, let alone whether they relate to Bulls’ 

defense. In light of the conclusory nature of the claims, the trial court properly found that the 

affidavit merely “suggests that such evidence might exist,” which falls far below the requisite 

showing of a cognizable constitutional claim. (Emphasis added.) As a result, taking the record 

and petition as a whole, we conclude that Bulls has failed to present sufficient facts 

demonstrating that he received ineffective assistance of counsel. The trial court, consequently, 
6 

 

did not abuse its discretion in rejecting the first two grounds for relief in Bulls’ petition without a 

hearing. 

C. Third Ground for Relief: Possible Brady Violations 

{¶13} “[T]he suppression by the prosecution of evidence favorable to an accused upon 

request violates due process when the evidence is material either to guilt or to punishment[.]” 

Brady, 373 U.S. at 87. “‘However, it is the defendant’s burden to establish that the evidence is 

both favorable and material and that there is reasonable probability that the outcome would have 

been different if the evidence had been provided.’” (Alterations removed.) State v. Charlton, 9th 

Dist. Lorain No. 12CA010206, 2014-Ohio-1330, ¶ 32, quoting State v. Moultry, 9th Dist. 

Summit No. 25065, 2010-Ohio-3010, ¶ 9. 

{¶14} As with his first two grounds for relief, Bulls failed to offer sufficient operative 

facts in his petition to show entitlement to post-conviction relief for a purported Brady violation. 

The affidavit attached to Bulls’ petition lists no exculpatory or otherwise favorable evidence that 

was withheld from him during the trial court proceedings. Rather, it merely claims that such 

evidence may exist since other cases with different defendants featured a Brady violation on the 

part of the Summit County Prosecutor’s Office. Such bare facts cannot satisfy the Brady 

standard. See State v. Ross, 9th Dist. Summit Nos. 22447, 22598, 2005-Ohio-5189, ¶ 47 (“This 

Court is not inclined to presume that the State has committed a Brady violation absent some 

affirmative evidence from the record.”), rev’d in part sub nom. In re Ohio Criminal Sentencing 

Statutes Cases, 109 Ohio St.3d 313, 2006-Ohio-2109, ¶ 2 (vacating sentence and remanding for 

resentencing in accordance with State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856). 

Accordingly, the trial court did not abuse its discretion in rejecting Bulls’ third ground for postconviction relief without a hearing. 
7 

 

{¶15} Finally, we also reject Bulls’ contention that he should have been provided 

additional discovery to determine whether the grounds for his post-conviction relief petition 

existed. “[T]his Court has repeatedly held that there is no right to discovery in a post-conviction 

proceeding.” State v. Coleman, 9th Dist. Summit No. 27506, 2015-Ohio-752, ¶ 5 (collecting 

cases). As a result, we cannot determine that the trial court abused its discretion by not allowing 

Bulls to conduct further discovery during the pendency of these post-conviction proceedings. Id. 

{¶16} Accordingly, we overrule Bulls’ sole assignment of error. 

III. 

{¶17} Having overruled Bulls’ assignment of error, we affirm the judgment of the 

Summit County Court of Common Pleas. 

Judgment affirmed. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 
8 

 

 Costs taxed to Appellant. 

 

 JULIE A. SCHAFER 

 FOR THE COURT 

CARR, P. J. 

MOORE, J. 

CONCUR. 

APPEARANCES: 

ADAM VAN HO, Attorney at Law, for Appellant. 

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant 

Prosecuting Attorney, for Appellee.