[Cite as State v. Ibrahim, 2020-Ohio-3425.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :



Plaintiff-Appellee, : No. 17AP-557

(C.P.C. No. 12CR-509)

v. :

(REGULAR CALENDAR)

Mohamed A. Ibrahim, :



Defendant-Appellant. :



D E C I S I O N

Rendered on June 23, 2020



On brief: Ron O'Brien, Prosecuting Attorney, and Barbara A.

Farnbacher, for appellee. Argued: Barbara A. Farnbacher.

On brief: Alan D. Gabel, for appellant. Argued: Alan D.

Gabel.



APPEAL from the Franklin County Court of Common Pleas

BROWN, J.

{¶ 1} This is an appeal by defendant-appellant, Mohamed A. Ibrahim, from a

judgment of the Franklin County Court of Common Pleas denying his petition for postconviction relief and motion for a new trial.

{¶ 2} We initially summarize the underlying facts and procedural history of this

case as set forth in two prior decisions of this court, State v. Ibrahim, 10th Dist. No. 13AP167, 2014-Ohio-666 ("Ibrahim I"), involving appellant's direct appeal of his convictions,

and State v. Ibrahim, 10th Dist. No. 14AP-355, 2014-Ohio-5307 ("Ibrahim II"), in which

appellant appealed the trial court's judgment denying a hearing on his petition for postconviction relief. On January 31, 2012, appellant and a co-defendant, Mohamed M. Noor,

were charged in a 47-count indictment for aggravated burglary, felonious assault,

kidnapping, aggravated robbery, as well as attendant firearm specifications.

No. 17AP-557 2

{¶ 3} The indictment arose out of a "home invasion" at the residence of Farheyo

Abdulkar ("Farheyo"). Ibrahim II at ¶ 2. On January 21, 2012, "a number of Somali friends

and acquaintances were gathered at an apartment located at 3740 Eakin Road." Ibrahim I

at ¶ 2. Shortly after midnight, appellant and Noor "forcefully entered the apartment

wearing masks." Id. Appellant "was armed with a handgun," and "[t]he intruders ordered

the occupants of the apartment to the floor and began to rob them of their wallets, cell

phones, and other belongings." Id. Appellant and Noor "trashed the apartment and

terrorized the occupants by kicking them, putting the gun against their heads, and

threatening their lives for approximately 30 minutes." Id.

{¶ 4} During the incident, appellant "pistol-whipped one victim in the head,"

injuring that person and causing the weapon to discharge, the bullet striking "another

victim in the stomach." Ibrahim I at ¶ 3. After the weapon discharged, "the situation

changed and the occupants of the apartment rose up against the intruders, disarmed

appellant, and beat appellant and the co-defendant with punches, kicks, and blows from a

baseball bat." Id. The shooting victim "escaped the apartment through a small window in

the bathroom," and "placed one of the 911 calls that brought police and medics to the scene

to neutralize the situation and tend to the injured." Id.

{¶ 5} In January 2013, the matter came for trial before a jury. Following the

presentation of evidence, the jury returned verdicts finding appellant guilty of 1 count of

aggravated burglary, 2 counts of felonious assault, 11 counts of kidnapping, and 11 counts

of aggravated robbery, all with accompanying firearm specifications. By judgment entry

filed February 1, 2013, the trial court sentenced appellant to 57 years of incarceration. Noor

"was convicted of the same, as well as having a weapon under disability," and the trial court

sentenced Noor to a total of 65 years in prison. Ibrahim II at ¶ 2.

{¶ 6} Appellant appealed his convictions, raising two assignments of error in which

he asserted: (1) the interpreter utilized by the prosecutor was not qualified, and (2) the trial

court abused its discretion in sentencing him to a 57-year term of incarceration. In Ibrahim

I, this court overruled both assignments of error and affirmed the judgment of the trial

court.

{¶ 7} On November 12, 2013, appellant filed a petition for post-conviction relief,

pursuant to R.C. 2953.21(C), asserting the trial court erred in failing to grant him a hearing

No. 17AP-557 3

on his petition. In Ibrahim II, this court affirmed in part and reversed in part the judgment

of the trial court. In conducting our review, we affirmed the trial court's denial of the

petition "on grounds of ineffective assistance of trial counsel for failure to secure footage

from security cameras." Ibrahim II at ¶ 22. This court also found the trial court did not err

in failing to hold a hearing to determine the credibility of six affiants, i.e., Fatima Yussuf,

Hussein Ibrahim, Luuley Mohamed, Mohamed Bukdow, Abdullah Aboke, and Marian

Mohamed.

{¶ 8} This court next considered the affidavits of three other individuals, Amina

Manguera, Mowlina Aboke, and Aweis Ibrahim. We noted that appellant had offered the

affidavits of these individuals "in support of his claims that trial counsel was ineffective for

failing to investigate, subpoena witnesses, and question witnesses regarding * * *

information [t]hat alleged victim Abdi Mohamed bragged that a robbery did not occur,"

that "another prosecuting witness stated that a robbery did not occur," and "the prosecuting

witnesses attempted to extort $10,000 from appellant's family in exchange for their silence

at the trial." Ibrahim II at ¶ 26.

{¶ 9} Manguera, appellant's aunt, averred in an affidavit "that she personally spoke

with one of the alleged victims, who informed her that appellant had seen * * * 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." Ibrahim II at ¶ 27. Manguera also

"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." Id.

{¶ 10} Aweis Ibrahim ("Aweis"), the brother of appellant, stated in his affidavit 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." Ibrahim II at ¶ 28.

Aweis "further averred that Somalilander witnesses approached his family attempting to

extort $10,000 in exchange for their silence at appellant's trial." Id. Aweis also "indicated

that he personally heard prosecuting witness Farheyo indicate that she wanted appellant to

keep his mouth shut concerning her drug operation." Id.

{¶ 11} Mowlina Aboke, the owner of a barbershop, averred that "prosecuting

witness Abdi Mohamed came into his barbershop" and told him "that there had been no

No. 17AP-557 4

robbery and that the robbery had been falsely reported to protect themselves from

appellant after he saw the drugs in the apartment." Ibrahim II at ¶ 29. Aboke also averred

in his affidavit "that Abdi Mohamed told him that he and the prosecuting witnesses had

offered appellant's family $10,000 'to make the case go away.' " Id. This court deemed

certain averments by Aboke "to be speculation." Id. This court found, however, that

Aboke's "apparent disinterest, and the fact that his other averments were consistent with

those of Manguera, Aweis, and appellant, lend credibility to their averments." Id.

{¶ 12} This court also determined that "exhibit No. 15, a purported jail visitor list

showing that two of the prosecuting witnesses, Farheyo Abdulkar and Abdi Aden,

attempted to visit appellant in jail," also lent "credibility to the averments of Mowlina

[Aboke], Manguera, Aweis and appellant." Ibrahim II at ¶ 30. With respect to claims of an

"alleged extortion attempt," raised in the affidavits of Manguera and Aboke, this court

found "[t]he 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." Id.

{¶ 13} In considering the above issues, this court held in part:

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.

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

[Aboke], 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.

Ibrahim II at ¶ 32-33.

{¶ 14} This court thus affirmed in part and reversed in part the judgment of the trial

court and remanded for further proceedings. On remand, the trial court conducted

No. 17AP-557 5

evidentiary hearings on October 4, 2016, March 6 and May 22, 2017, during which

appellant testified on his own behalf and presented the testimony of his brother, Aweis

Ibrahim, his aunt, Amina Manguera, and Mowlina Aboke. Plaintiff-appellee, State of Ohio,

presented the testimony of appellant's trial counsel, Jeffrey M. Basnett, and Trevor M.

Clark, assistant chief counsel for the Ohio Department of Rehabilitation and Correction

("ODRC"). On May 1, 2017, appellant filed a motion for new trial. On July 19, 2017, the

trial court filed a decision and entry denying appellant's petition for post-conviction relief

and motion for new trial (hereafter "July 19, 2017 Decision"). Also on July 19, 2017, the

court issued a "decision on post-trial motions" (hereafter "July 19, 2017 Decision on PostTrial Mot.").

{¶ 15} In its decision and entry denying the petition, the trial court rendered the

following findings of fact based on the evidence presented at the evidentiary hearing

following remand. Appellant's brother, Aweis, testified "he was not present when the

offenses occurred." Aweis testified that Abdi Mohamed, the owner of a coffee shop,

"bragged about beating up [appellant] and putting him in jail for life." (July 19, 2017

Decision at 2.) Aweis "also testified that his uncle, Abdulkadir Aden, 'a couple of guys,' 'the

lady that owned the place,' and 'one of the guy[s]' asked for $10,000 to not appear for trial."

(July 19, 2017 Decision at 2-3.) In his affidavit, Aweis "averred that 'Somalilander

witnesses' made these purported statements." (July 19, 2017 Decision at 3.)

{¶ 16} Aweis stated "he was aware of the alleged extortion attempt before

[appellant's] trial began * * * but never provided this information to [appellant's] trial

attorney." Aweis "never came to court during the week-long jury trial, even though he knew

the trial was going on, and [appellant's] trial attorney was present." Aweis "never spoke to

trial counsel, the prosecutor, or the police." Aweis visited [appellant] in jail "seven times in

2012." (July 19, 2017 Decision at 3.)

{¶ 17} Mowlina Aboke testified that Abdi Mohamed came into Aboke's barbershop

"after the offenses occurred with 'a patch or something' on 'his neck or head.' " Mohamed

"said 'he got hit on the night of that incident.' " Mohamed further "said two guys came in

to buy khat, and they were robbed." Aboke "did not believe Abdi Mohamed." Aboke

"refuted" the averment in his affidavit "that Abdi Mohamed told Aboke that the occupants

of the apartment attempted to extort money from [appellant's] family." According to Aboke,

No. 17AP-557 6

"it was 'not just one person' * * * talking about the $10,000 in his barbershop, that it was

not 'the coffee shop guy,' that it was 'the person that got shot.' " This conversation "occurred

within a few days or one week of the offenses." Aboke was aware "that [appellant's] trial

took place one year later." Aboke "did not tell the police, or the prosecutor, or [appellant's]

trial attorney." (July 19, 2017 Decision at 3.)

{¶ 18} Amina Manguera, appellant's aunt, testified and "refuted the statements in

her affidavit." Manguera "testified that she told [appellant's] post-conviction attorney that

* * * the things you are telling me, it's not correct." (July 19, 2017 Decision at 3.) Manguera

"testified, 'Like I told you before, I don't know anything about this. * * * And I'm telling you

the same thing again.' " (July 19, 2017 Decision at 3-4.) When Manguera was shown her

affidavit "she did not recognize it," and "testified, 'I cannot read or write. They must have

wrote those things.' " Manguera "testified that what was said in her affidavit she either did

not say or did not remember saying." Manguera "also testified she did not know whether

there was a party or drug activity, that she was not there, and that she did not witness

anything." (July 19, 2017 Decision at 4.)

{¶ 19} Appellant testified "that he told his trial attorney that the witnesses were not

going to come to court * * *, that he never asked his trial attorney to speak with his family,

and that his trial attorney provided discovery, which they discussed." Appellant "also

acknowledged that his trial attorney visited him eight times while he was in jail." Appellant

"did not know of the alleged extortion attempt until after his trial," and testified "that he

obtained the 'visiting list' * * * from his 'case manager.' " Appellant "thought two of the

victims, Farheyo [Abdulkar] and Abdi Aden, tried to visit him, but they never did, either in

prison or in jail." (July 19, 2017 Decision at 4.)

{¶ 20} Trial counsel for appellant, Jeffrey M. Basnett, visited appellant in jail "six

times in 2012, and twice in 2013." During these visits, Basnett "repeatedly asked [appellant]

to tell him what happened." Appellant "refused, simply stating over and over again that the

witnesses were not going to come to court." Appellant "never talked to counsel about any

kind of extortion plot or anything like that." (July 19, 2017 Decision at 4.)

{¶ 21} Basnett "never spoke to [appellant's] brother, never had contact with

[appellant's] brother, and never received any messages from [appellant's] brother, even

though * * * Basnett's office was right across the street from the courthouse." (July 19, 2017

No. 17AP-557 7

Decision at 4-5.) Basnett "also never spoke with Mowlina Aboke or Amina Manguera."

(July 19, 2017 Decision at 5.)

{¶ 22} Appellant's "Exhibit 15, attached to his post-conviction petition and

identified as 'Jail Visitation List' is an ORDC document, and is not a list of persons who

visited [appellant] in prison." (July 19, 2017 Decision at 5.)

{¶ 23} Based on the evidence presented, the trial court concluded trial counsel "did

not fail to investigate [appellant's] case, and [appellant] failed to demonstrate deficient

performance in the investigation." (July 19, 2017 Decision at 10.) The court further found

trial counsel did not render deficient performance in failing to subpoena Aboke or

appellant's brother, "particularly because neither person was present at the scene, neither

had any first-hand knowledge about the offenses, and neither could provide any admissible

evidence." The court determined "trial counsel could not question witnesses about an

alleged extortion plot or 'victims' saying no robbery occurred, because trial counsel was not

informed of these assertions at any time before or during [appellant's] week-long trial."

(July 19, 2017 Decision at 11.) Finally, the court found assertions regarding an alleged

extortion plot "not credible." (July 19, 2017 Decision at 12.) Thus, the trial court denied

the petition for post-conviction relief and motion for new trial.

{¶ 24} On appeal, appellant sets forth the following four assignments of error for

this court's review:

FIRST ASSIGNMENT OF ERROR

APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT

TO EFFECTIVE ASSISTANCE OF COUNSEL THROUGH

COUNSEL'S FAILURE TO INVESTIGATE, RESEARCH AND

PREPARE A DEFENSE.

SECOND ASSIGNMENT OF ERROR

APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT

TO EFFECTIVE ASSISTANCE OF COUNSEL THROUGH

COUNSEL'S FAILURE TO INVESTIGATE AND PRESENT

MITIGATION EVIDENCE.

No. 17AP-557 8

THIRD ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN DISREGARDING POSTCONVICTION WITNESSES' TESITMONY AND WITH

RESPECT TO ITS FINDINGS OF FACT.

FOURTH ASSIGNMENT OF ERROR

THE TRIAL COURT REFUSED TO RECEIVE EVIDENCE

REGARDING A VISITORS' LIST AT ISSUE IN THE POSTCONVICTION PROCEEDINGS.

{¶ 25} Appellant's assignments of error are interrelated and will be considered

together. Under these assignments of error, appellant asserts: (1) he was denied his right

to effective assistance of counsel through counsel's failure to investigate, research, and

prepare a defense, (2) his counsel was ineffective in failing to investigate and present

mitigation evidence, (3) the trial court erred in disregarding testimony of post-conviction

witnesses, and (4) the trial court erred in refusing to receive evidence regarding a visitor

list.

{¶ 26} At the outset, we note that "[p]ostconviction relief is a civil collateral attack

on a judgment, not an additional direct appeal of the underlying judgment." State v.

Canada, 10th Dist. No. 16AP-7, 2016-Ohio-5948, ¶ 12, citing State v. Phipps, 10th Dist. No.

14AP-545, 2015-Ohio-3042, ¶ 5, citing State v. Calhoun, 86 Ohio St.3d 279, 281 (1999). A

petition for post-conviction relief permits a petitioner "to present constitutional issues that

would otherwise be unreviewable on direct appeal because the evidence supporting those

issues is not contained in the record of the criminal conviction." Id., citing Phipps at ¶ 5,

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

for post-conviction relief does not provide the petitioner "a second opportunity to litigate

the conviction." Id.

{¶ 27} The Supreme Court of Ohio has held that "a trial court's decision granting or

denying a postconviction petition filed pursuant to R.C. 2953.21 should be upheld absent

an abuse of discretion; a reviewing court should not overrule the trial court's finding on a

petition for postconviction relief that is supported by competent and credible evidence."

State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 58.

No. 17AP-557 9

{¶ 28} Under Ohio law, "[t]he decision to grant or deny a defendant's motion for a

new trial based on newly discovered evidence is governed by Crim.R. 33." State v. Love, 1st

Dist. No. C-050131, 2006-Ohio-6158, ¶ 34. Specifically, "[u]nder Crim.R. 33(A)(6), a new

trial may be granted when 'new evidence material to the defense is discovered, which the

defendant could not with reasonable diligence have discovered and produced at the trial.' "

Id. A trial court's decision "to grant or deny a motion for a new trial on the basis of newly

discovered evidence is within the sound discretion of the trial court and, absent an abuse of

discretion, that decision will not be disturbed." State v. Hawkins, 66 Ohio St.3d 339, 350

(1993), citing State v. Williams, 43 Ohio St.2d 88 (1975), paragraph two of the syllabus.

{¶ 29} In order to prevail on a claim of ineffective assistance of counsel under

Strickland v. Washington, 466 U.S. 668 (1984), a defendant "must show that 'counsel's

performance fell below an objective standard of reasonableness and that prejudice arose

from counsel's performance.' " In re C.C., 10th Dist. No. 04AP-883, 2005-Ohio-5163, ¶ 101,

quoting State v. Reynolds, 80 Ohio St.3d 670, 674 (1998). Further, "[t]he benchmark for

judging any claim of ineffectiveness must be whether counsel's conduct so undermined the

proper functioning of the adversarial process that the trial cannot be relied on as having

produced a just result." Id., citing Strickland at 686. In considering the two-part test for

such claims, a defendant must first show that "counsel's performance was objectively

deficient by producing evidence that counsel acted unreasonably." Id. Second, a defendant

must "show that, but for [his or] her counsel's errors, there is a reasonable probability that

the results of the trial would be different." Id. In this respect, " '[a] reasonable probability

is a probability sufficient to undermine the confidence in the outcome.' " Id., quoting State

v. Carpenter, 116 Ohio App.3d 615, 622 (2d Dist.1996).

{¶ 30} Appellant first asserts his trial counsel was ineffective in failing to properly

investigate the case, including failure to request an investigator, subpoena witnesses, and

seek camera footage from across the street from the incident. Related to his claim of failure

to investigate, appellant argues his trial counsel failed to speak with appellant's brother,

who purportedly had information regarding an extortion plot involving witnesses.

Appellant also argues his counsel only visited him in jail 6 times over a 12-month period,

and that counsel failed to discuss potential defenses with him, including self-defense.

No. 17AP-557 10

Finally, appellant contends the evidence shows his counsel was unable to adequately

prepare for trial because of health issues (i.e., a cancer diagnosis) and a heavy case load.

{¶ 31} In response, the state initially asserts that several arguments raised by

appellant in this appeal are procedurally barred as having been previously addressed and

decided by this court. Specifically, the state argues this court has already rejected

arguments with respect to issues involving: (1) counsel's purported failure to inform

appellant of the propriety of a self-defense theory, (2) whether counsel was ineffective for

failing to secure an alleged security video, (3) an allegation that the victim's apartment was

a drug house, and (4) an alleged fight between appellant and Abdi Mohamed ten days prior

to the robbery. We agree.

{¶ 32} In Ibrahim II, this court addressed the claim by appellant that "trial counsel

was ineffective because he failed to inform appellant regarding the affirmative defense of

self-defense." Id. at ¶ 16. We found appellant failed to "support this argument in his

appellate brief * * * other than to say that, when his postconviction relief attorney explained

self-defense to him, he realized it would have been applicable to him." Id. We concluded

that "[t]his claim could have been raised on direct appeal and, accordingly, is barred by res

judicata." Id.

{¶ 33} This court also addressed the claim by appellant that his counsel was

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

of the apartment." Ibrahim II at ¶ 22. We noted that, "[a]lthough affiant Abdullah Aboke

avers that the security cameras existed, neither he nor appellant aver that they viewed the

security footage." Id. This court found appellant's self-serving affidavit was "legally

insufficient to establish operative facts with regard to this claim," and we therefore

"affirm[ed] the trial court's denial of the petition for postconviction relief on grounds of

ineffective assistance of trial counsel for failure to secure footage from security cameras."

Id.

{¶ 34} This court further addressed and rejected claims by appellant that his counsel

should have questioned witnesses at trial regarding "the fact that the apartment was a

known drug house," and "the fact that appellant had an altercation with Abdi Mohamed ten

days prior to the robbery." Ibrahim II at ¶ 17. We observed that "numerous witnesses

testified that the apartment was a known drug house," and that "[a]ppellant also testified

No. 17AP-557 11

that he and Abdi Mohamed had gotten into it on the streets before." Id. Noting that "[a]ll

of this was clear from the transcript," we concluded that "[t]hese claims could have been

raised on direct appeal and * * * are barred by res judicata." Id.

{¶ 35} The state further argues this court previously addressed and rejected the

claim now raised by appellant under his second assignment of error, in which he asserts

ineffective assistance of counsel based on counsel's failure to investigate and present

mitigation evidence, including evidence that he was the father of two sons. Again, we agree

with the state's contention.

{¶ 36} In Ibrahim II, 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." Id. at ¶ 34. Appellant asserted that these witnesses "would have testified that

he is a devoted father of two young sons and a hard worker employed in the construction

trade." Id. This court rejected that claim, noting that "decisions regarding what witnesses

to call falls within the purview of trial strategy and, absent prejudice, generally will not

constitute ineffective assistance of counsel." Id. at ¶ 35. This court also noted "appellant

himself informed the court that he had a family." Id. We further found no showing of a

"reasonable probability that the evidence would have swayed the jury to impose a lesser

sentence." Id. We therefore "affirm[ed] 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." Id.

{¶ 37} The "law of the case" doctrine "provides that the decision of a reviewing court

in a case remains the law of that case on the legal questions involved for all subsequent

proceedings in the case at both the trial and reviewing levels." Nolan v. Nolan, 11 Ohio

St.3d 1, 3 (1984). Accordingly, "the decision of an appellate court in a prior appeal will

ordinarily be followed in a later appeal in the same case and court." Id. at 4. In this respect,

"[t]he doctrine of the law of the case 'is a rule of practice analogous to estoppel.' " State v.

Hultz, 9th Dist. No. 07CA0043, 2008-Ohio-4153, ¶ 5, quoting Hopkins v. Dyer, 104 Ohio

St.3d 461, 2004-Ohio-6769, ¶ 22. Further, "[o]n this court's remand for limited purposes,

the trial court was obliged to accept all issues previously adjudicated as finally settled."

Blackwell v. Internatl. Union, United Auto Workers Local No. 1250, 21 Ohio App.3d 110,

No. 17AP-557 12

112 (8th Dist.1984). Here, to the extent appellant raises claims of ineffective assistance of

counsel previously addressed and rejected by this court, we will not revisit those issues.

{¶ 38} We further agree with the state that appellant has raised several new

arguments that are not properly before us on appeal. Specifically, appellant asserts his trial

counsel was ineffective in: (1) failing to request a continuance when the victims appeared

for trial, and (2) in not challenging his convictions based on the state's failure to call 2 of

the 11 victims to testify. However, as argued by the state, appellant failed to raise the first

argument before the trial court and, with respect to the latter claim, such argument should

have been raised on direct appeal rather than in a post-conviction proceeding. The failure

to raise an issue in a petition for post-conviction relief results in a waiver of a right to assert

that issue for the first time on appeal. State v. Barb, 8th Dist. No. 94054, 2010-Ohio-5239,

¶ 25. In a similar vein, "a petitioner cannot raise, for purposes of postconviction relief, an

error that could have been raised on direct appeal." State v. Bennington, 4th Dist. No.

12CA956, 2013-Ohio-3772, ¶ 9.

{¶ 39} We therefore now turn to the issues properly before this court on appeal. As

previously noted, in Ibrahim II this court affirmed in part and reversed in part the trial

court's decision denying appellant's petition for post-conviction relief, finding the trial

court "did not address appellant's extortion claims, nor the purported jail visitor list." Id.

at ¶ 32. This court thus remanded the matter for a hearing on those issues.

{¶ 40} With respect to the jail visitor list, appellant averred in his affidavit in support

of his petition: "As the attached jail visitor's roster indicates, Farheyo Adbukar and Abdi

Aden, who were alleged victims, attempted unsuccessfully to visit me at jail." (Appellant's

Aff. at ¶ 115.) In addressing that issue in Ibrahim II, this court found in part: "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." Id. at ¶ 30. This court further noted

that potential cross-examination of "Farheyo and Aden" by appellant's counsel on certain

issues, "in particular with regard to the jail visitor list, could have been damaging to the

credibility of all the witnesses." Id. at ¶ 31.

{¶ 41} On remand, the trial court heard evidence regarding the jail visitor list,

including testimony by Trevor Clark, the assistant chief counsel for ODRC. At the hearing,

No. 17AP-557 13

Clark identified State's exhibit B (referenced in appellant's post-conviction petition as

Defendant's Ex. No. 15) as a printout from ODRC's "tracking system known as the DOTS

portal system." (May 22, 2017 Tr. at 12.) He described the exhibit as "a list of individuals

that we have relevant visitation information about." (May 22, 2017 Tr. at 13.) While noting

that the document contained "information about potential visitors," he further clarified:

"That's not to indicate that they actually have visited or even applied to visit." (May 22,

2017 Tr. at 14.)

{¶ 42} Clark was questioned about the fact the names of two victims, "Farheyo

Adbukar and Abdi Aden," appeared on the list. Clark was "not able to tell from the DOTS

portal system" why their names were on the list. He was also questioned about the fact the

letter "R" appeared "to the far right of this column * * * under Adbukar and Abdi Aden."

Clark stated the "R" designation "stands for restricted," and "the reason or relation listed

for why they are restricted is that they are a victim." He defined "restricted" to mean

"prevented from visiting." (May 22, 2017 Tr. at 15.) According to Clark, if ODRC obtains

information regarding a victim, "we will restrict them and then that information makes it

on this list." (May 22, 2017 Tr. at 17.)

{¶ 43} Clark identified state's exhibit D as a "Visitor Application Tracking

document," and he identified state's exhibit C as "a visitation log." (May 22, 2017 Tr. at 22.)

Clark testified that neither Farheyo nor Aden had ever applied for permission to visit

appellant, and that neither of those names appear on the visitation log.

{¶ 44} In its decision on post-trial motions, the trial court found the exhibit at issue

(defendant's exhibit No. 15), attached to the post-conviction petition and identified as a jail

visitation list, "was not a jail visitor list at all, but rather a document prepared by the Ohio

Department of Rehabilitation and Correction after the trial." The trial court further found

"the purported 'visitors' were actually names of persons who were not permitted to visit."

(Emphasis sic.) (July 19, 2017 Decision on Post-Trial Mot. at 2.) In its accompanying

decision and entry denying the petition, the trial court concluded the jail visitation list was

"irrelevant to [appellant's] post-conviction ineffective assistance of trial counsel claim."

(July 19, 2017 Decision at 7.)

{¶ 45} On review, we agree with the trial court that the evidence on remand

regarding the exhibit does not support the claim by appellant in his affidavit that Farheyo

No. 17AP-557 14

and Aden attempted to visit him in the county jail prior to trial. Significantly, the evidence

indicates the ODRC prison list is a document appellant obtained after his trial and

conviction, and the exhibit is not a county jail visitor list but, as indicated, an ODRC

document (i.e., not a county jail document but a prison jail document). As this court noted

in Ibrahim II, "[t]rial counsel cannot be considered ineffective for failing to investigate

information gathered after trial." Id. at ¶ 25. Here, the record supports the trial court's

determination that defendant's exhibit No. 15 was irrelevant to the petition (i.e., not

relevant to a claim of ineffective assistance for failure to conduct an adequate pretrial

investigation).

{¶ 46} We next consider the evidence before the trial court as to the alleged extortion

claim. During the remand hearing, appellant presented the testimony of three witnesses,

Amina Manguera, Mowlina Aboke, and Aweis Ibrahim, who had previously averred, in

affidavits in support of the petition, statements regarding a purported extortion plot by

witnesses who testified at trial as to the events at the residence of Farheyo on January 21,

2012.

{¶ 47} The record indicates that Aweis (the brother of appellant), in his November

2013 affidavit offered in support of appellant's petition for post-conviction relief, averred

that "Somalilander witnesses approached my family offering them $10,000 in exchange for

their silence at Mohamed Ibrahim's trial." (Aweis Ibrahim Aff. at ¶ 24.) Aweis, who also

stated in that affidavit that Farheyo, one of the alleged victims, attempted unsuccessfully to

visit appellant in jail, further averred: "I personally heard Farheyo * * * indicating that she

wanted Mohamed Ibrahim to keep his mouth shut concerning her drug operation." (Aweis

Ibrahim Aff. at ¶ 27.) Aweis also stated in his affidavit: "I am personally aware that Abdi

Mohamed, owner of the Star Coffee Shop has been bragging at Star Coffee that he beat

Mohamed Ibrahim, the member of another Somalian tribe, and put him in jail." (Aweis

Ibrahim Aff. at ¶ 17.)

{¶ 48} During the hearing on remand, Aweis testified that appellant and Abdi

Mohamed, the owner of a coffee shop, had been involved in a fight at the coffee shop just

prior to the incident at Farheyo's apartment. Aweis stated that Abdi Mohamed later

bragged about beating appellant and putting him in jail. On direct examination, Aweis was

questioned about how he knew of the information in paragraph 24 of his affidavit (in which

No. 17AP-557 15

he stated Somalilander witnesses approached his family offering them $10,000 in exchange

for their silence at trial). Aweis responded: "They was talking about it in the coffee shop

and * * * one of the guy[s] come to me particularly and asked me about that, talk to your

phone number about this exodus, so we could shut it down and take the $10,000." (Oct. 4,

2016 Tr. at 20.) Aweis stated he called appellant's counsel "one time" before the trial, and

that "[s]everal times" he went to the attorney's office. (Oct. 4, 2016 Tr. at 21.) He "never

reached the attorney." (Oct. 4, 2016 Tr. at 20.) Aweis later stated he called the attorney's

office "[a]bout four or five times." (Oct. 4, 2016 Tr. at 21.)

{¶ 49} Aweis stated that Abdul Aden is a "former uncle by marriage" with respect to

appellant's family. (Oct. 4, 2016 Tr. at 24.) Aweis testified that Aden, who was in the

apartment building during the incident, "asked for the $10,000." When further questioned

during direct examination whether Aden was the individual who asked for money, Aweis

responded: "He and the lady that owned the place, a couple of guys asked for the money."

(Oct. 4, 2016 Tr. at 25.) Aweis visited appellant in jail while awaiting trial, but testified he

was afraid to come to trial.

{¶ 50} On cross-examination, Aweis stated he was not in the apartment building

during the incident. Aweis acknowledged visiting appellant a number of times in jail prior

to trial, including on January 30, February 20, March 12, June 11, August 3 and 31, and

October 1, 2012. Aweis stated he came to the courthouse on at least two occasions at the

time of trial, but "[t]hey changed * * * the date." (Oct. 4, 2016 Tr. at 39.) When asked if he

ever attempt to seek out appellant's counsel during the trial, Aweis responded: "I don't even

know Jeff, how he looks. How would I get his attention?" (Oct. 4, 2016 Tr. at 45.) Aweis

also acknowledged he did not attempt to contact the prosecutor or police with information

of an extortion plot. When asked if he made any attempt to tell anyone of this information

prior to trial, Aweis responded: "No." (Oct. 4, 2016 Tr. at 56.)

{¶ 51} In considering the testimony of Aweis, the trial court noted the obvious

"interest" of appellant's brother in "the outcome of these proceedings." (July 19, 2017

Decision at 7.) As to statements by Aweis regarding an extortion plot, the trial court found

such testimony "vague and uncertain," and that the witness failed to provide "specific,

detailed information regarding these assertions." The trial court noted that Aweis "failed

to come forward with this information at any time before or during" trial, "even though he

No. 17AP-557 16

was aware of the pendency of [appellant's] case." (July 19, 2017 Decision at 8.) The court,

further noting that Aweis "said he did not do anything with the information except to try to

pass it on – without success – to the defense attorney," found Aweis' "testimony about his

efforts to contact the attorney * * * not credible." The trial court also deemed significant

the fact Aweis did not, prior to trial, "bother to tell his brother [appellant]" about a

purported extortion plot. (July 19, 2017 Decision on Post-Trial Mot. at 2.) Noting that

Aweis "was not present at the scene of the offenses," the trial court concluded that the

witness was unable to provide admissible evidence regarding the incident, and that his

testimony "generally lacked credibility." (July 19, 2017 Decision at 8.)

{¶ 52} Here, the record supports the trial court's finding that Aweis never came

forward with information of an alleged extortion plot prior to trial. As indicated, the trial

court also found the testimony vague and lacking in specifics. We note that Aweis, while

stating in his affidavit that it was "Somalilander witnesses" who approached his family

offering money for their silence at trial, testified at the hearing that it was Aden "and the

lady that owned the place, a couple of guys asked for the money." (Oct. 4, 2016 Tr. at 25.)

He also testified "[t]hey" were talking about it in the coffee shop, and that "one of the guy[s]

come to me" to talk so we "could shut it down and take the $10,000." (Oct. 4, 2016 Tr. at

20.) While stating he attempted to phone appellant's counsel at least one time prior to trial,

Aweis acknowledged he never spoke with appellant's counsel, nor did he attempt to contact

anyone else, including the prosecutor's office or the police, with information of an extortion

plot.

{¶ 53} Under Ohio law, credibility determinations "are primarily for the trial court

as the trier of fact" in a case. State v. Jordan, 6th Dist. No. L-18-1147, 2019-Ohio-2647,

¶ 45. In addressing the credibility of this witness, the trial court could have reasonably

considered any bias or interest that Aweis, the brother of appellant, had in the outcome of

the proceedings. See Calhoun at 287 (trial court did not abuse its discretion in dismissing

credibility of affiants who "are relatives of the petitioner or otherwise interested in the

success of petitioner's efforts"); State v. Group, 7th Dist. No. 10 MA 21, 2011-Ohio-6422,

¶ 124 (trial court reasonably determined affidavit of defendant's mother lacked credibility

as it relied on hearsay, and because affiant, as the relative of petitioner, "clearly has an

interest in the outcome of the case"). In addition to the trial court's determination that

No. 17AP-557 17

Aweis never came forward with critical evidence of an alleged extortion plot prior to trial,

the record also supports the trial court's finding that Aweis never informed appellant, prior

to trial, of such a plot even though Aweis acknowledged visiting his brother numerous times

in jail. On review, we decline to disturb the trial court's credibility determinations as to the

testimony of appellant's brother in support of post-conviction relief.

{¶ 54} We next address the trial court's consideration of the hearing testimony of

affiant Mowlina Aboke. In his November 2013 affidavit, Aboke stated he was "the owner of

Certified Cuts barber shop in Columbus, Ohio." (Aboke Aff. at ¶ 24.) Aboke averred in his

affidavit that, after the incident at the Eakin Road apartment, "Abdi Mohamed, the owner

of Star Coffee Shop * * * came to my barbershop and began talking about what had occurred

during the January 21, 2012 incident." (Aboke Aff. at ¶ 25.) According to Aboke, "Abdi

Mohamed told me that there had been no robbery, and that the occupants of [the

apartment] falsely reported that they had been robbed to protect themselves and the others

from drug charges after Mohamed Ibrahim viewed quantities of drugs and money inside

the Eakin Rd. apartment on January 21, 2012." (Aboke Aff. at ¶ 26.) Aboke further stated

that "Abdi Mohamed had been in a fight with Mohamed Ibrahim about 10 days preceding

the alleged robbery incident and was suspicious that he might have been a drug informant."

(Aboke Aff. at ¶ 27.) Aboke also averred that "Abdi Mohamed told me before Mohamed

Ibrahim's trial that the occupants of the [apartment] had offered $10,000 to the family to

make the case go away." (Aboke Aff. at ¶ 29.)

{¶ 55} Aboke, age 27, testified at the remand hearing regarding the statements in his

affidavit. Aboke, who was born in Somalia, is the owner of a barbershop in Westerville and

previously owned a barbershop in Columbus. Aboke testified that Abdi Mohamed, a

barbershop client, was at the barbershop and Aboke observed "something on his neck or

his head." (Oct. 4, 2016 Tr. at 65.) Mohamed "told me two guys came in and pretty much

they were, I guess, buying that - - it was called khat." Aboke further testified: "And then he

told me that they got robbed, but which he was saying at the time I don't think it was true

'cause he was just stumbling through his words." (Oct. 4, 2016 Tr. at 66.)

{¶ 56} During direct examination, counsel for appellant inquired whether Abdi

Mohamed "told you that there had not been a robbery?" Aboke responded "[y]es," and that

"[h]e [Mohamed] made it up pretty much" because of "the drugs that was there." (Oct. 4,

No. 17AP-557 18

2016 Tr. at 68.) Counsel for appellant also inquired whether "the guy who owns the Star

Coffee Shop [Abdi Mohamed] told you that they had tried to extort $10,000 from

[appellant's] family?" Aboke responded: "Yes." (Oct. 4, 2016 Tr. at 69.)

{¶ 57} On cross-examination, Aboke testified that Abdi Mohamed came into the

barbershop a week after the January 2012 incident. Aboke stated that he spoke with

appellant's brother, Aweis, regarding the barbershop conversation. In response to an

inquiry as to when he spoke with Aweis, Aboke stated: "I have no clue." Aboke testified he

did not take this information to the prosecutor or police because he "was scared to talk."

(Oct. 4, 2016 Tr. at 79.) When asked whether he shared this information with anyone other

than Aweis, Aboke responded: "No one else." (Oct. 4, 2016 Tr. at 81.)

{¶ 58} The prosecutor inquired of Aboke as to when he had the conversation with

Abdi Mohamed regarding the $10,000 extortion offer. In response, Aboke stated: "I didn't

say he said. I heard, that's all I said." (Oct. 4, 2016 Tr. at 83.) Upon further inquiry about

his (Aboke's) affidavit statement that Abdi Mohamed told him about the $10,000 extortion

offer, Aboke stated: "[t]here was a lot of people in the barbershop at the time he was in."

The prosecutor then asked whether "somebody else said it," and Aboke responded: "There

was a lot of customers there, and they were just talking about that incident that happened."

He further stated: "It was not just one person. It was multiple clients that came in that

knew the incident and what happened there." (Oct. 4, 2016 Tr. at 84.)

{¶ 59} The prosecutor questioned Aboke whether any of the individuals requesting

the $10,000 were "in the barbershop or was it just other people talking about what they

heard?" (Oct. 4, 2016 Tr. at 85.) Aboke stated: "When I said this $10,000 to the family to

make the case go away, is the person that got shot. That's all I heard, and that's all I said in

there." The prosecutor then further inquired whether it was "the coffee shop guy" who was

talking about "wanting 10 grand?" Aboke responded: "Not him." (Oct. 4, 2016 Tr. at 86.)

{¶ 60} In considering the testimony of Aboke, the trial court determined that the

witness "could not provide admissible evidence regarding the incident," and that "his

testimony generally lacked credibility." The court made the following further findings

regarding the testimony of this witness: (1) Aboke "was not present at the scene of the

offenses"; (2) he "provided only vague and uncertain testimony regarding the purported

extortion attempt," as he "first refuted his statement in his affidavit that 'Abdi Mohamed'

No. 17AP-557 19

told him of the alleged extortion attempt," and he "also testified that there were a lot of

people in his barbershop allegedly talking about the attempted extortion of [appellant's]

family"; (3) Aboke "testified that he did not believe 'Abdi Mohamed' when he said there had

been a robbery," and "Aboke also testified, in response to leading questions, that Abdi

Mohamed said there was not [a] robbery and that 'he made it up' "; and (4) Aboke "was

aware of the pendency of [appellant's] case, but did not come forward with this

information," and he "never spoke to the police, the prosecutor, or [appellant's] counsel."

(July 19, 2017 Decision at 8.)

{¶ 61} On review, the record supports the trial court's finding that Aboke refuted his

own affidavit statement that Abdi Mohamed told him the occupants of the Eakin Road

apartment had offered $10,000 to the family. As cited above, in response to an inquiry

during cross-examination as to when Abdi Mohamed made this statement, Aboke stated:

"I didn't say he said. I heard, that's all I said." (Oct. 4, 2016 Tr. at 83.) He further stated:

"There was a lot of customers there, and they were just talking about that incident that

happened." According to Aboke, "[i]t was multiple clients that came in that knew the

incident and what happened there." (Oct. 4, 2016 Tr. at 84.) Aboke later testified: "When

I said this $10,000 to the family to make the case go away, is the person that got shot. That's

all I heard, and that's all I said in there." (Oct. 4, 2016 Tr. at 86.)

{¶ 62} As noted by the state, while Aboke testified that he heard the conversation

about an extortion plot a "[w]eek after" the incident, the record indicates the individual who

was shot during the incident, Hirsi Hirsi, was still in the hospital at that time (i.e., Hirsi

could not have been the individual in the barbershop discussing an extortion plot).1 (Oct. 4,

2016 Tr. at 76.) As also reflected above, Aboke testified the only individual he spoke with

regarding this information was appellant's brother, Aweis, although Aboke had "no clue"

when that conversation occurred. (Oct. 4, 2016 Tr. at 79.) Aboke also acknowledged, as

found by the trial court, that he never attempted to contact the police, prosecutor, or

appellant's counsel during the almost one-year time period between when he first learned

of the information and the start of the trial. As with the testimony of appellant's brother,

we will not disturb the trial court's credibility determination as to this witness.



1 At trial, Hirsi Hirsi testified that he received a bullet wound to the stomach during the incident. Hirsi stated

he had surgery and was treated at Mount Carmel Hospital where he remained "[a]bout two and a half, three

weeks." (Jan. 23, 2013 Tr. Vol. I at 208.)

No. 17AP-557 20

{¶ 63} Appellant's aunt, Amina Manguera, was also called as a witness by appellant

during the remand hearing. In addressing the testimony of Manguera, the trial court

concluded that the witness "refuted her affidavit in its entirety," and that "[h]er averments

are not credible." (July 19, 2017 Decision at 7.) The record supports the trial court's

determination.

{¶ 64} In her November 2013 affidavit, Manguera stated she "personally spoke with

one of the alleged victims who was present at 3740 Eakin Rd. Apt. #11 at the time of the

January 21, 2012 incident," and that she "spoke with him after the incident * * * took place,

but before Mohamed Ibrahim's trial." (Manguera Aff. at ¶ 5.) Manguera averred that this

"victim" told her "the occupants * * * had beaten Mohamed Ibrahim because he had

witnessed quantities of drugs and money inside the apartment and that they made up the

robbery story because they were afraid he was going [to] reveal their 'secret.' " (Manguera

Aff. at ¶ 6.) Manguera further averred: "The alleged victim who spoke to me after the

incident * * * told me no robbery had occurred, but that if the family would give the group

$10,000 they would remain silent and make the case go away." (Manguera Aff. at ¶ 8.)

{¶ 65} During the remand hearing, Manguera testified she was appellant's

"maternal aunt." (Mar. 6, 2017 Tr. at 5.) When questioned about her affidavit statements

that she personally spoke with one of the alleged victims following the incident, and that

this victim told her the occupants had beaten appellant because he had witnessed drugs

and money inside the apartment, Manguera responded: "No, they didn't know me. How

we going to talk to each other?" (Mar. 6, 2017 Tr. at 11.) Upon further inquiry whether she

had spoken with a victim as set forth in paragraphs 5 and 6 of her affidavit, Manguera

stated: "No, I did not talk to him." (Mar. 6, 2017 Tr. at 12.) When asked whether she had

made any of the statements in her affidavit, Manguera responded: "There must be some

sort of a misunderstanding." (Mar. 6, 2017 Tr. at 17.) Thus, the record supports the trial

court's finding that Manguera refuted all the statements in her affidavit, including

statements that a victim had told her no robbery had occurred but that they would remain

silent if the family would give the group $10,000.

{¶ 66} Here, the trial court heard testimony during the remand hearing from the

three affiants (Aweis, Aboke, and Manguera) and made credibility determinations as to

their averments per this court's remand directive. With respect to the primary issues

No. 17AP-557 21

involving whether prosecuting witnesses were involved in an extortion plot, and whether

Abdi Mohamed or another prosecuting witness stated a robbery did not occur, the trial

court found the testimony of the affiants on these issues vague and uncertain, and generally

lacking in credibility. As addressed above, based on this court's review of the record, and

giving "deference to the trial court's post-evidentiary-hearing findings and credibility

determinations," we find no error regarding those determinations. State v. Mackey, 2d

Dist. No. 2017-CA-42, 2018-Ohio-516, ¶ 8. See also Gondor at ¶ 47, citing State v. Braden,

10th Dist. No. 02AP-954, 2003-Ohio-2949, ¶ 13 ("when a trial court rules on a petition for

post-conviction relief after a hearing, an appellate court will give deference to the trial

court's findings of fact").

{¶ 67} As noted by the state, none of the above witnesses came forward at any time

during the nearly one-year period appellant's case was pending (nor during the week-long

trial) with information regarding an extortion plot. Further, the record indicates

appellant's brother, Aweis, who visited appellant numerous times during that time period,

never told appellant about such a plot. As also noted by the state, while appellant's brother

stated in his affidavit that Abdi Mohamed bragged "that he beat" appellant "and put him in

jail," such fact was never disputed as numerous witnesses testified that they overcame their

assailants in the apartment and beat them and held them until police officers arrived.

{¶ 68} In Ibrahim II,this court also deemed relevant an exhibit (the "jail visitor list")

attached to appellant's petition in support of his claim that two trial witnesses (Farheyo and

Aden) attempted to visit him in jail, purportedly going to the issue of an extortion plot. We

have noted, however, that the evidence developed from the remand hearing supports the

trial court's determination that the document was irrelevant to the issues in the petition, as

the record indicates the exhibit at issue was an ODRC document (i.e., not a county jail

visitor list) obtained by appellant after trial (and the record belies any claim by appellant in

his post-conviction affidavit that the witnesses at issue, as part of an extortion plot,

attempted to visit him in jail before trial).

{¶ 69} In addressing other issues raised in the petition, the trial court made findings

that trial counsel visited appellant six times in 2012 and two times in 2013, and that counsel

"provided discovery, which they discussed." The court noted testimony by appellant that

he told his counsel "the witnesses were not going to come to court," and he "never asked his

No. 17AP-557 22

trial attorney to speak with his family." (July 19, 2017 Decision at 4.) The court found that

trial counsel "never spoke to [appellant's] brother, never had contact with [appellant's]

brother, and never received any messages from [appellant's] brother, even though

[counsel's] office was right across the street from the courthouse." (July 19, 2017 Decision

at 4-5.) The court also found that counsel for appellant "never spoke with Mowlina Aboke

or Amina Manguera." (July 19, 2017 Decision at 5.)

{¶ 70} During the remand hearing, the trial court heard testimony from both

appellant and appellant's trial counsel, Jeff Basnett. Appellant testified he spoke to his

attorney "about my case." Appellant "also did tell [Basnett] that the witnesses were not

going to come to court." (Mar. 6, 2017 Tr. at 109.) Appellant stated that he "asked for an

investigator," and "I kept asking him repeatedly if he spoke * * * to my alleged victims at

the time." (Mar. 6, 2017 Tr. at 110.)

{¶ 71} Appellant "did not ask [Basnett] to talk to my family." (Mar. 6, 2017 Tr. at

111.) Appellant acknowledged his counsel provided him copies of discovery, and appellant

had the opportunity to review the discovery materials. Appellant testified that he told his

attorney he did not agree with everything in the discovery, and that he "told Mr. Basnett

that I went to the address to buy drugs." (Mar. 6, 2017 Tr. at 112.) Appellant stated that his

attorney "came to see me eight times." (Mar. 6, 2017 Tr. at 113.) Appellant further testified

that he was concerned because his counsel "was coughing too much" during the trial.

(Mar. 6, 2017 Tr. at 117.) Appellant stated that Basnett is "a good lawyer, but he was not

good with me, because at the time he was sick. He was ill." (Mar. 6, 2017 Tr. at 147.)

Appellant was unaware of information regarding an extortion plot of $10,000 at the time

of trial.

{¶ 72} Basnett testified he has been a licensed attorney since 1991. He was

previously employed by the public defender's office until 2007, at which time he entered

private practice. Approximately 90 percent of his practice involves criminal cases. Basnett

became involved in appellant's case in February 2012. Appellant's co-defendant, Noor, was

represented by attorney "Dan Sabol." (Mar. 6, 2017 Tr. at 34.) The cases were tried

together, and the same witnesses testified in both cases. Both appellant and his codefendant were convicted by a jury in January 2013.

No. 17AP-557 23

{¶ 73} Basnett testified that no friends or relatives of appellant ever contacted him

prior to or during trial with information about recanting witnesses or an extortion plot.

With respect to information obtained from appellant, Basnett testified that "[d]uring the

trial, he started to tell me * * * some information about the case, but he never talked about

any type of extortion plots or anything like that." (Mar. 6, 2017 Tr. at 38.) According to

Basnett, had he been made aware of information regarding an extortion plot or recanting

witnesses he would have contacted the prosecutor and then "approach[ed] the judge" about

such information. (Mar. 6, 2017 Tr. at 41.) Basnett stated that appellant's brother, Aweis,

never contacted him, nor was he ever contacted by Mowlina Aboke or Amina Manguera.

{¶ 74} In preparation for trial, Basnett reviewed the state's discovery packet, and

provided appellant "a full copy of the discovery and the witness list." (Mar. 6, 2017 Tr. at

42.) Basnett testified he "kept going out, talking to my client and asking him to talk to me

about the case." (Mar. 6, 2017 Tr. at 43.) Basnett visited his client at the Franklin County

Jail on February 26, April 29, May 17, June 12, August 17, October 19, 2012, and January

21 and 27, 2013. In discussions with appellant, Basnett was told by appellant "the victims

weren't coming." Basnett "would say to him * * * that we need to come up with a defense,

what went on. And he just would tell me, 'Don't worry, Mr. Basnett. These people aren't

coming.' " (Mar. 6, 2017 Tr. at 46.)

{¶ 75} Basnett testified he also worked with Sabol, counsel for co-defendant Noor,

"trying to find out what was going on with the case." (Mar. 6, 2017 Tr. at 45.) Basnett stated

that he and Sabol were both "going to go out and * * * talk to the victims." (Mar. 6, 2017 Tr.

at 46.) On the scheduled date, Basnett had a conflict so "Sabol went out and talked to the

victims, and he told me that he was going to * * * tell me what they said." Sabol met with

the victims and then relayed to Basnett the information he garnered. Basnett stated that

Sabol "came back and told me that, 'Hey, these people are saying exactly what's in the police

reports, their statements in the police reports.' " (Mar. 6, 2017 Tr. at 47.) Following his

discussion with Sabol, Basnett "went out and talked to [appellant] again, telling him, 'Hey

* * * my understanding is these people are coming and they're saying the same things * * *

in the police reports.' " (Mar. 6, 2017 Tr. at 47-48.) According to Basnett, appellant "just

told me they weren't coming." (Mar. 6, 2017 Tr. at 48.)

No. 17AP-557 24

{¶ 76} Basnett testified that appellant began "telling me information that I should

have had ahead of time all during trial, so I was * * * dealing with what people were

testifying to; and then he would be telling me information all week during the trial." When

asked what type of information appellant provided during trial, Basnett stated that,

"although [appellant] had full discovery and had a list of witnesses, he didn't even tell me

that one of the alleged victims * * * was an uncle of his until his uncle was on the stand and

testified." Basnett stated that appellant also "brought up a fight" he had with "one of the

alleged victims * * * but that was during the trial he brought that up." (Mar. 6, 2017 Tr. at

51.) Basnett related that he and his client "were in the holding cell in the back when he

finally told me about that." (Mar. 6, 2017 Tr. at 52.)

{¶ 77} Basnett acknowledged he began having health issues in 2012, when he

"started losing weight," and that he "really got sick in 2013." He was diagnosed with cancer

"at the end of July of 2013." Basnett subsequently underwent chemotherapy and radiation

"in the fall" of 2013. (Mar. 6, 2017 Tr. at 49.) Basnett testified that his growing illness had

no effect on his trial performance with respect to appellant's case.

{¶ 78} On cross-examination, Basnett was questioned as to why he did not obtain

an investigator. Basnett responded: "[I]n order for me to get an investigator, I had to go to

the judge, ask him for money, but I'd have to tell him why I need an investigator. And I

couldn't just tell the judge * * * my client's telling me that the witnesses weren't coming."

(Mar. 6, 2017 Tr. at 64-65.) Basnett stated he "kept going out to my client, asking him,

almost begging him, to tell me what was going on with this case," but "he never would tell

me anything." (Mar. 6, 2017 Tr. at 79.) When asked whether appellant maintained his

innocence, Basnett responded: "No." (Mar. 6, 2017 Tr. at 89.)

{¶ 79} On re-direct examination, Basnett stated the discovery materials he reviewed

for trial included police reports, all witness statements, photos of the crime scene, and

photos of his client at the hospital. Basnett testified he reviewed "all the discovery" with

appellant, and "[k]ept constantly going over it with him and did talk to him about the

different issues and things that we needed to bring up," but "every time I would talk to him,

he just told me that these people weren't coming, and he wouldn't tell me why." (Mar. 6,

2017 Tr. at 98.)

No. 17AP-557 25

{¶ 80} In addressing trial counsel's performance, the trial court noted it was

"familiar with trial counsel who has practiced in Franklin County Common Pleas Court for

more than two decades and knows trial counsel to be a competent, diligent, hard-working,

and skilled criminal defense lawyer." The trial court further noted it had "presided over

[appellant's] trial during which trial counsel performed competently, making pertinent and

timely objections, cross-examining the State's witnesses, presenting evidence, and making

cogent arguments on [appellant's] behalf." The trial court found "counsel's subsequent

serious medical diagnosis had absolutely no effect on his representation of [appellant]

based on trial counsel's testimony and * * * the Court's personal observations of counsel

during the trial." (July 19, 2017 Decision at 9.)

{¶ 81} With respect to trial counsel's pretrial investigation, the trial court noted that

counsel "obtained and reviewed the discovery provided by the State, including the 11

witness statements." Trial counsel "also spoke with co-defendant's counsel, who

interviewed the witnesses and confirmed that they were saying the same thing as in their

statements to police." (July 19, 2017 Decision at 9.) The trial court found that "trial counsel

repeatedly met with [appellant] and asked [appellant] to tell what happened," but that

"[appellant] refused to tell his attorney what happened, and only said, repeatedly, that the

State's witnesses were not going to come to court." The trial court noted "trial counsel was

never told of any alleged extortion attempt or that 'victims' were saying that no robbery

occurred before or during [appellant's] trial." The court further found appellant "did not

tell his attorney of the purported extortion," nor did appellant ever ask his attorney "to

interview his brother." The trial court concluded that "trial counsel did not fail to

investigate [appellant's] case, and [appellant] failed to demonstrate deficient performance

in the investigation." (July 19, 2017 Decision at 10.)

{¶ 82} The trial court further determined trial counsel did not render deficient

performance in failing to subpoena appellant's post-conviction witnesses, as "trial counsel

was not apprised of these persons at any time before or during [appellant's] trial, either by

[appellant] or anyone else." Regarding trial counsel's failure to subpoena either Aweis or

Aboke, the trial court noted "neither person was present at the scene, neither had any firsthand knowledge about the offense, and neither could provide any admissible evidence." In

this respect, the trial court found trial counsel "could not question witnesses about an

No. 17AP-557 26

alleged extortion plot or 'victims' saying no robbery occurred" as counsel "was not informed

of these assertions at any time before or during defendant's week-long trial." (July 19, 2017

Decision at 11.) The court further found appellant "failed to present any credible evidence

that the robberies did not occur or that victims attempted to extort money to make the case

go away" and that, "even if any extortion attempt did take place, that wouldn't show * * *

the robberies didn't occur." (July 19, 2017 Decision on Post-Trial Mot. at 2.)

{¶ 83} Based on the evidence presented at the remand hearing, the trial court

concluded trial counsel did not render deficient performance under Strickland. The trial

court alternatively addressed the second prong of Strickland and found appellant failed to

establish prejudice, "or a reasonable probability of a different outcome" on the basis "there

was overwhelming credible evidence of [appellant's] guilt, and because none of his postconviction witnesses were present at the scene." Specifically, the trial court held the state

presented "credible testimony from nine of the 11 victims present at the scene, who

described the terrifying ordeal [appellant] and his codefendant perpetrated that night

during the armed home invasion, armed robberies, violent assaults, and shooting." The

trial court noted "[appellant] and his codefendant were found inside the victim's apartment

when the police arrived," that "[appellant] was dressed in dark clothing" and had "a blue

latex glove on his hand," and that "his DNA was recovered from the ski mask and the gun

found at the scene." (July 19, 2017 Decision at 12.)

{¶ 84} On review, we find the trial court properly addressed issues raised by this

court's remand directive, and that the court's factual findings are supported by the record.

As noted, this court remanded for a hearing on the petition based primarily on statements

by three affiants (Aweis, Aboke, and Manguera). As already addressed above, we will not

disturb the trial court's credibility determinations with respect to the testimony of those

witnesses.

{¶ 85} The record also supports the trial court's findings that appellant told his trial

attorney the witnesses against him were not going to testify, and that he never asked

Basnett to speak with his family. Similarly, the record supports findings by the trial court

that appellant's counsel reviewed discovery materials with appellant and visited him eight

times in jail while awaiting trial, and neither appellant nor his attorney were aware of any

alleged extortion plot prior to trial. Further, while appellant testified that he "believe[d]"

No. 17AP-557 27

two of the victims attempted to visit him in jail, the hearing evidence did not indicate these

individuals visited him either in jail or in prison. (Mar. 6, 2017 Tr. at 143.) Rather, as noted

by the trial court, "the purported 'visitors' were actually names of persons who were not

permitted to visit." (Emphasis sic.) (July 19, 2017 Decision on Post-Trial Mot. at 2.)

{¶ 86} Appellant challenges the trial court's determination that his trial counsel

conducted an adequate pretrial investigation. In general, "counsel has a duty to make

reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary." Strickland at 691. In this respect, "a particular decision not

to investigate must be directly assessed for reasonableness in all the circumstances,

applying a heavy measure of deference to counsel's judgments." Id. Further, "[a] fair

assessment of attorney performance requires that every effort be made to eliminate the

distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged

conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689.

{¶ 87} The record indicates that trial counsel, in preparing for trial, reviewed the

discovery materials provided by the state, including 11 witness statements that were

essentially consistent regarding the events at issue. As noted above, it is undisputed that

counsel reviewed those statements with appellant, as well as the other contents of the

discovery packet. It is also undisputed Basnett had at least 8 pretrial meetings with

appellant. Basnett testified he attempted to discuss the case with his client, but that

appellant was not forthcoming with information, and repeatedly indicated witnesses were

not going to testify against him at trial.

{¶ 88} In gathering information for the case, Basnett related he also "was working

with Mr. Sabol," counsel for the co-defendant. (Mar. 6, 2017 Tr. at 45.) Sabol interviewed

the state's witnesses, and then met with Basnett to share that information. Basnett testified

he initially planned to go with Sabol to meet with the witnesses, but he was unable to attend

that day due to a scheduling conflict. Sabol informed Basnett that the witnesses " 'are

saying exactly what's in the police reports, their statements in the police reports.' " (Mar. 6,

2017 Tr. at 47.) After his discussion with Sabol, Basnett again met with appellant and told

him that the witnesses "are coming and they're saying the same things * * * in the police

reports." (Mar. 6, 2017 Tr. at 48.) Basnett testified he told appellant "exactly what Mr.

Sabol told me." (Mar. 6, 2017 Tr. at 65.) According to Basnett, appellant again assured him

No. 17AP-557 28

"they weren't coming." (Mar. 6, 2017 Tr. at 48.) Basnett further testified that appellant

began providing information to him during trial.

{¶ 89} Under Strickland, "[t]he reasonableness of counsel's actions may be

determined or substantially influenced by the defendant's own statements or actions,"

inasmuch as "[c]ounsel's actions are usually based, quite properly, on informed strategic

choices made by the defendant and on information supplied by the defendant." Id. at 691.

Assessing "what investigation decisions are reasonable depends critically on such

information." Id. Even "strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional judgments support the

limitations on investigation." Id. at 690-91.

{¶ 90} The instant case does not present a failure by trial counsel to conduct any

pretrial investigation. Here, the record indicates counsel focused his investigation on the

discovery materials provided by the state. Basnett testified he received and reviewed a full

discovery package from the state, and the discovery materials included witness lists, 11

witness statements, police reports, crime scene photographs, and crime lab reports

(including DNA evidence). Basnett also reviewed those discovery materials with his client

on multiple occasions. The trial court essentially found the decision by trial counsel to rely

primarily on the state's discovery materials was not professionally unreasonable based on

the amount of evidence provided (as well as Basnett's discussions with co-defendant's

counsel, who interviewed the witnesses and confirmed the witnesses' statements as

reported by police, and counsel's attempt to elicit information from his client). We find no

error with that determination. See State v. Jackson, 3d Dist. No. 14-09-24, 2009-Ohio5906, ¶ 14 (trial counsel's decision to review and investigate witnesses and evidence

provided in state's discovery filings, and to "not investigate outside of the evidence

contained" in such filings, "was reasonable in light of all the evidence provided by the State

during discovery"); Stojetz v. Ishee, 892 F.3d 175, 196 (6th Cir.2018) (trial counsels'

decision limiting investigation to a review of discovery documents provided by the state, as

opposed to an independent investigation, not ineffective where state provided significant

discovery material and professional judgments supported those decisions).

{¶ 91} Appellant argues Basnett acknowledged he never spoke with appellant's

brother, Aweis, and that he failed to subpoena Aboke. As noted, however, the trial court

No. 17AP-557 29

did not find credible testimony as to attempts by appellant's brother (or any of the three

affiants) to come forward before or during trial with information of recanting witnesses or

extortion plots, nor does the record indicate trial counsel was made aware of the identity of

the affiants prior to trial. As also noted, the evidence failed to indicate appellant's brother,

Aweis, ever told appellant of an alleged extortion plot despite visiting him in jail numerous

times during the year prior to trial. Significantly, none of these affiants were eyewitnesses

to the events at issue, and we agree with the trial court that counsel's purported failure to

discover or locate, as part of a pretrial investigation, potential witnesses he was not aware

of (and who were never identified as crime-scene witnesses) did not, under the

circumstances, constitute ineffective assistance.

{¶ 92} Appellant also challenges his counsel's failure to interview victims and to hire

an investigator. While Basnett testified he was unable to accompany Sabol (co-defendant's

counsel) to interview witnesses on the scheduled date, the record reflects Basnett was aware

of their anticipated testimony based on his subsequent discussions with Sabol and his

review of the witness statements. See, e.g., Marshall v. Warden, Ross Corr. Inst., S.D.Ohio

No. 1:09-CV-429 (Nov. 19, 2013), quoting Eggleston v. United States, 798 F.2d 374, 376

(9th Cir.1986) (" 'A claim of failure to interview a witness may sound impressive in the

abstract, but it cannot establish ineffective assistance when the person's account is

otherwise fairly known to defense counsel.' "). Further, although appellant was apparently

adamant that the state's witnesses would not appear at trial, the record of the trial court

proceedings does not suggest trial counsel was surprised by the testimony of the witnesses.

In this respect, the trial court, who presided over appellant's trial, noted "counsel performed

competently, making pertinent and timely objections, cross-examining the State's

witnesses, presenting evidence, and making cogent arguments on [appellant's] behalf."

(July 19, 2017 Decision at 9.)

{¶ 93} Further, "[a]n attorney's decision not to hire an investigator does not equate

to a failure to investigate and result in ineffective assistance of counsel." State v. Hairston,

9th Dist. No. 05CA008768, 2006-Ohio-4925, ¶ 36, citing State v. Scott, 10th Dist. No.

88AP-346 (Sept. 29, 1988). During the remand hearing, Basnett testified as to his decision

not to hire an investigator, stating he could not request the trial court to provide an

investigator at state expense without a sufficient basis for such request. Under such

No. 17AP-557 30

circumstances, courts will generally "defer to counsel's conduct as a reasoned strategic

decision." State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, ¶ 247 (trial counsel's

pretrial investigation not deficient in failing to seek court appointment of an investigator

where counsel may have determined it would be inappropriate to file a motion because they

could not demonstrate a particularized need).

{¶ 94} Appellant also points to trial counsel's health diagnosis, and argues it is

reasonable to assume he was suffering significantly before and during trial. As cited above,

Basnett testified during the remand hearing that he started losing weight in 2012, and was

"probably getting sick" that year, but that he "really got sick in 2013." The record indicates

that, while appellant's trial took place in January 2013, Basnett was not diagnosed with

cancer until "the end of July of 2013," and he did not undergo treatment until fall 2013.

(Mar. 6, 2017 Tr. at 49.) Basnett testified that his illness had no effect on his performance

during appellant's trial; Basnett further related that he represented another criminal

defendant in a "jury trial at the end of June * * * 2013," and that he "won that jury trial."

(Mar. 6, 2017 Tr. at 52.)

{¶ 95} The trial court, who presided over both appellant's jury trial and the postconviction proceedings, held that "trial counsel's subsequent serious medical diagnosis had

absolutely no effect on his representation of [appellant] during the week-long trial" based

on the testimony presented at the remand hearing and the trial court's "personal

observations of counsel during the trial." (July 19, 2017 Decision at 9.) The record contains

competent, credible evidence to support the trial court's findings on that issue.

{¶ 96} On review, we find no error with the trial court's determination that counsel

made reasonable professional decisions viewed from counsel's perspective at the time he

made them and in considering all the circumstances. We therefore conclude the trial court

did not err in finding appellant failed to establish deficient performance of trial counsel

under Strickland.

{¶ 97} The record also supports the trial court's determination that appellant could

not, in any event, satisfy the prejudice prong under Strickland. As observed by the trial

court, "[i]dentity was never an issue" in this case, as appellant and the co-defendant were

taken into custody at the crime scene. (July 19, 2017 Decision on Post-Trial Mot. at 3.) At

trial, witnesses testified that appellant entered the residence wearing a ski mask and

No. 17AP-557 31

carrying a weapon, while co-defendant Noor wore a bandana. As noted under the facts, this

court previously cited evidence presented at trial that the intruders "ordered the occupants

of the apartment to the floor and began to rob them of their wallets, cell phones and other

belongings." Ibrahim I at ¶ 2. The assailants "trashed the apartment and terrorized the

occupants by kicking them, putting the gun against their heads, and threatening their lives

for approximately 30 minutes." Id. The evidence further indicated that "appellant pistolwhipped one victim in the head, which not only injured that person [but] caused the gun to

discharge," with the bullet striking "another victim in the stomach." Id. at ¶ 3. After the

gun was discharged, "the situation changed and the occupants of the apartment rose up

against the intruders, disarmed appellant," and held appellant and the co-defendant until

police officers arrived. Id.

{¶ 98} At the time of his arrest, appellant had a blue latex glove on one hand, and

police investigators recovered a loaded Ruger handgun and a black ski mask at the scene.

As noted by the trial court, appellant's "DNA was recovered from the ski mask and the gun

found at the scene." (July 19, 2017 Decision at 12.)

{¶ 99} The state's evidence included the testimony of nine eyewitnesses to the events

and, as previously indicated, the same judge presided over the trial and the post-conviction

proceedings. The trial court recalled observing the state's witnesses, and "that they

provided credible evidence establishing [appellant's] guilt"; further, that appellant

"testified at trial, and the jury rejected his testimony." (July 19, 2017 Decision at 12.) The

trial court, noting that the state presented 14 witnesses at trial, and that each witness was

cross-examined by two defense attorneys, found the testimony and evidence against

appellant to be "consistent and overwhelming." (July 19, 2017 Decision on Post-Trial Mot.

at 3.) The trial court further determined appellant "failed to establish a reasonable

probability of a different outcome if counsel had investigated or subpoenaed [appellant's]

brother or * * * Aboke, or questioned witnesses about [appellant's] present assertions

[regarding] alleged extortion and 'victims' stat[ing] no robbery occurred." (July 19, 2017

Decision at 13.) On review, we agree with the trial court's conclusion that appellant failed

to demonstrate prejudice under the second prong of Strickland.

{¶ 100} Finally, we find no merit to appellant's contention (raised under his fourth

assignment of error) that the trial court erred in refusing to expand the scope of the post-

No. 17AP-557 32

conviction hearing into issues regarding defendant's exhibit No. 15 (the purported jail

visitor list). As previously noted, the evidence at the hearing established the exhibit at issue

was a prison document obtained by appellant after his trial and conviction. Here, the trial

court did not err in quashing two subpoenas on the basis that the information sought was

not relevant to the issue of trial counsel's pretrial investigation.

{¶ 101} Accordingly, the trial court did not err in denying appellant's petition for

post-conviction relief. Further, we find no error by the trial court in denying the motion for

new trial, which incorporated arguments raised by appellant in the post-conviction petition

related to claims of ineffective assistance of counsel and based on the evidence developed

during the remand hearing.

Based on the foregoing, appellant's four assignments of error are not welltaken and are overruled. Accordingly, having overruled all of appellant's assignments of

error, the judgment of the Franklin County Court of Common Pleas is hereby affirmed.