JOURNAL ENTRY AND OPINION Petitioner-appellant Carla. Nelson, Sr. (appellant) appeals from the denial of his petition for post-conviction relief without hearing.
Appellant assigns the following errors for review:
I. THE TRIAL COURT COMMITTED PREJUDICIAL REVERSIBLE ERROR BY HOLDING APPELLANT'S
POSTCONVICTION RELIEF PETITION OF
SEPTEMBER 17, 1996, IN ABEYANCE FOR APPROXIMATELY THREE (3) YEARS UNTIL APPELLANT FILED A PETITION FOR WRIT OF MANDAMUS IN CASE NO. 76862, AND THEN PROCEEDING TO JUDGMENT ON SEPTEMBER 14, 1999, WITH AN ABSURD AND ERRONEOUS FINDINGS OF FACT AND CONCLUSIONS OF LAW IN ORDER TO HAVE SAID MANDAMUS DISMISSED AS BEING MOOT, THEREBY, CREATING AND COMPELLING APPELLANT TO PURSUE A PIECEMEAL APPEAL NOT BASED UPON A FACTUAL RECORD, WHICH DENIED APPELLANT TO A FAIR AND IMPARTIAL CONSIDERATION WHEN THE TRIAL COURT DISMISSED SAID POSTCONVICTION BASED UPON THE GROUNDS OF RES JUDICATA, AND FURTHER ADDED TO THAT PREJUDICE BY NOT SPECIFYING IN ITS JUDGMENT EXACTLY WHICH PORTIONS OF THE FILES AND RECORDS ESTABLISHED THE BAR OF RES JUDICATA, FURTHER ADDED TO THAT PREJUDICE BY NOT CONSIDERING THE EVIDENCE ATTACHED TO THE POSTCONVICTION PETITION WHICH DEHORS THE TRIAL RECORD AND OF WHICH PRESENTED PRIMA FACIE EVIDENCE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND PROSECUTORIAL MISCONDUCT, BEING THAT THE PROSECUTOR
WITHHELD EXCULAPATORY EVIDENCE AND KNOWINGLY PRESENTED UNCORRECTED AND/OR PERJURED TESTIMONY AT APPELLANT'S CRIMINAL TRIAL IN COMMON PLEAS CASE NO. 212590. ADDITIONALLY, THE TRIAL COURT
COMMITTED PREJUDICIAL REVERSIBLE ERROR AND ABUSED ITS DISCRETION IN NOT CARRYING OUT ITS STATUTORILY IMPOSED DUTY AS MANDATED BY OHIO REVISED CODE 2953.21(C), THEREBY, DENYING APPELLANT OF DUE PROCESS AND EQUAL PROTECTION AS GUARANTEED TO APPELLANT BY ARTICLE 1 SECTION 2 AND 16 OF THE OHIO CONSTITUTION ALSO SEC. 10 AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
II. APPELLANT CONTINUES TO BE DEPRIVED OF HIS LIBERTY BECAUSE THE TRIAL COURT COMMITTED PREJUDICIAL REVERSIBLE ERROR AND ABUSED ITS DISCRETION, THEREBY, DENYING APPELLANT OF DUE PROCESS AND EQUAL
PROTECTION WHEN THE TRIAL COURT FAILED TO CONSIDER AND/OR TO PROCEED TO JUDGMENT ON APPELLANT'S PRO S.E. EX PARTE MOTION SEEKING OUT AT STATE'S EXPENSE, COURT-APPOINTED EXPERT FOR THE DNA TESTING OF STATE'S EXHIBIT-17 (ALLEGE VICTIMS UNDERWEAR), WHEN IN FACT DNA IS NEWLY
DISCOVERED AND JUDICIALLY ACCEPTED SCIENTIFIC TECHNOLOGY WHICH WAS NOT AVAILABLE IN 1985, WHEN THE ALLEGED CRIME OCCURRED, NOR AT THE TIME THAT APPELLANT WENT TO TRIAL ON OCTOBER 19, 1987, AND SAID DNA EXPERT AND DNA TESTING OF STATE'S EXHIBIT-17, AND THE RESULTS THEREOF, WOULD HAVE SUPPORTED APPELLANT'S POSTCONVICTION CLAIM NO.III, AND WOULD HAVE PRESENTED NEWLY DISCOVERED EVIDENCE DEHORS THE TRIAL RECORD AND WENT DIRECTLY TO APPELLANT'S ALIBI DEFENSE AND INNOCENCE CLAIM. THE TRIAL COURT'S INACTIONS TO CONSIDER AND/OR PROCEED TO JUDGMENT VIOLATES APPELLANT'S RIGHTS SECURED BY ARTICLE I SECTION 2, 10, 16 OF THE OHIO CONSTITUTION AND SECTION I OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
I. On October 21, 1987, a jury convicted appellant of three counts of rape and one count of kidnapping. This court affirmed appellant's conviction in State v. Nelson (Mar. 27, 1989), Cuyahoga App. No.