State v. Steffen - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of
Ohio are being transmitted electronically beginning May 27,
1992, pursuant to a pilot project implemented by Chief Justice
Thomas J. Moyer.
Please call any errors to the attention of the Reporter's
Office of the Supreme Court of Ohio. Attention: Walter S.
Kobalka, Reporter, or Deborah J. Barrett, Administrative
Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010.
Your comments on this pilot project are also welcome.
NOTE: Corrections may be made by the Supreme Court to the
full texts of the opinions after they have been released
electronically to the public. The reader is therefore advised
to check the bound volumes of Ohio St.3d published by West
Publishing Company for the final versions of these opinions.
The advance sheets to Ohio St.3d will also contain the volume
and page numbers where the opinions will be found in the bound
volumes of the Ohio Official Reports.

The State of Ohio, Appellee, v. Steffen, Appellant.
The State of Ohio, Appellee, v. Byrd, Appellant.
The State of Ohio, Appellee, v. Beuke, Appellant.
The State of Ohio, Appellee, v. Zuern, Appellant.
The State of Ohio, Appellee, v. Sowell, Appellant.
The State of Ohio, Appellee, v. Holloway, Appellant.
The State of Ohio, Appellee, v. Poindexter, Appellant.
The State of Ohio, Appellee, v. Henderson, Appellant.
The State of Ohio, Appellee, v. Hicks, Appellant.
The State of Ohio, Appellee, v. Jamison, Appellant.
[Cite as State v. Steffen (1994), Ohio St.3d .]
Criminal procedure -- Death penalty -- Execution date set by
Supreme court of Ohio may not be stayed by any other state
court -- When criminal defendant has exhausted direct
review, one round of postconviction relief, and one motion
for delayed reconsideration in the court of appeals and in
the Supreme Court, any further action a defendant files in
the state court system is likely to be interposed for
purposes of delay and would constitute an abuse of the
court system.
(Nos. 86-193, 86-512, 86-642, 86-1130, 86-1499, 86-1597,
87-243, 87-447, 88-1079 and 88-1286 -- Submitted April 19, 1994
-- Decided September 28, 1994.)
Appeals from the Court of Appeals for Hamilton County,
Nos. C-830445, C-830676, C-830829, C-840803, C-830835,
C-840871, C-850394, C-850557, C-860173 and C-850753.
1. Case No. 86-193, David Steffen.
In 1983, a jury convicted David J. Steffen of the murder
of Karen Range of Cincinnati. The trial court sentenced him to
death, and the court of appeals affirmed Steffen's conviction
and sentence. On June 24, 1987, we rejected Steffen's
twenty-three propositions of law and unanimously affirmed
Steffen's conviction and sentence. 31 Ohio St.3d 111, 31 OBR
273, 509 N.E.2d 383. Steffen then petitioned for a writ of
certiorari in the Supreme Court of the United States, which was
denied in February 1988. 485 U.S. 916, 108 S.Ct. 1089, 99
L.Ed.2d 250, rehearing denied, 485 U.S. 1030, 108 S.Ct. 1587,
99 L.Ed.2d 902.

On August 7, 1991, the court of appeals affirmed the
dismissal of Steffen's petition for postconviction relief. We
denied Steffen's jurisdictional motion from that judgment on
January 15, 1992, 62 Ohio St.3d 1494, 583 N.E.2d 966, rehearing
denied, 63 Ohio St.3d 1407, 585 N.E.2d 428.
In July 1992, Steffen initiated collateral litigation
under R.C. 149.43 to gain access to the trial judge's trial
notes. We affirmed the dismissal of Steffen's complaint for a
writ of mandamus in October 1993. 67 Ohio St.3d 439, 619
N.E.2d 688.
Steffen also applied for delayed reconsideration under
State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204.
We affirmed the court of appeals' denial of relief in November
1993. 67 Ohio St.3d 1500, 622 N.E.2d 649, rehearing denied, 68
Ohio St.3d 1418, 624 N.E.2d 192.
On March 2, 1994, we denied Steffen's delayed motion to
reinstate his direct appeal. On March 14, 1994, the state of
Ohio filed a motion to set an execution date.
2. Case No. 86-512, John Byrd.
In 1983, a jury convicted John Byrd of the aggravated
murder of Monte Tewksbury. The trial court sentenced him to
death, and the court of appeals affirmed his conviction and
sentence. In August 1987, we rejected Byrd's nineteen
propositions of law and unanimously affirmed his conviction and
sentence. State v. Byrd (1987), 32 Ohio St.3d 79, 512 N.E.2d
611. Byrd appealed to the Supreme Court of the United States,
which denied his petition for a writ of certiorari in January
1988. 484 U.S. 1037, 108 S.Ct. 763, 98 L.Ed.2d 780, rehearing
denied, 485 U.S. 972, 108 S.Ct. 1252, 99 L.Ed.2d 449.
The court of appeals reversed the denial of Byrd's
petition for postconviction relief, instructing the trial court
to review the entire record. State v. Byrd (Feb. 13, 1991),
Hamilton App. No. C-890699, unreported. We refused to review
that judgment. 60 Ohio St.3d 705, 573 N.E.2d 665. In August
1992, we overruled Byrd's jurisdictional motion on his appeal
after the remand of his postconviction proceeding. 64 Ohio
St.3d 1442, 596 N.E.2d 472.
In February 1991, the court of appeals affirmed the trial
court's denial of Byrd's motion for a new trial. State v. Byrd
(Feb. 13, 1991), Hamilton App.No. C-890659, unreported. We
refused to accept Byrd's appeal of that judgment. State v.
Byrd (1991), 61 Ohio St.3d 1421, 574 N.E.2d 1092.
On October 27, 1993, we affirmed the decision of the court
of appeals denying Byrd's application for delayed
reconsideration under State v. Murnahan, supra, 67 Ohio St.3d
1485, 621 N.E.2d 407, rehearing denied, 68 Ohio St.3d 1412, 623
N.E.2d 568. Also on that date, we denied Byrd's motion for
delayed reinstatement of his original appeal. 67 Ohio St.3d
1487, 621 N.E.2d 409, rehearing denied, 68 Ohio St.3d 1411, 623
N.E.2d 567.
Most recently, Byrd applied for a one-hundred-twenty-day
stay of the proceedings in his federal habeas corpus case in
order to comply with McCleskey v. Zant (1991), 499 U.S. 467,
111 S.Ct. 1454, 113 L.Ed.2d 517. Judge Carl B. Rubin of the
United States District Court for the Southern District of Ohio,
Western Division, denied this motion, concluding that: "The
current motions are intended only for purposes of delay. Ten

years and eleven months; nine appeals and forty-eight judicial
inquiries should be enough." Order of Judge Carl B. Rubin, No.
C-1-94-167. The United States Court of Appeals for the Sixth
Circuit reversed and granted the stay, No. 94-3251, and the
Supreme Court of the United States denied the application to
vacate the stay, No. A-758. On April 18, 1994, the state of
Ohio filed a motion to set execution date.
3. Case No. 86-642, Michael Beuke.
In October 1983, a jury convicted Michael Beuke of the
aggravated murder of Robert S. Craig. The trial court imposed
a death sentence, and the court of appeals affirmed. Beuke
raised twenty propositions of law, but we rejected these and
affirmed Beuke's conviction and sentence in 1988. 38 Ohio
St.3d 29, 526 N.E.2d 274, rehearing denied, 38 Ohio St.3d 718,
533 N.E.2d 788. The Supreme Court of the United States denied
Beuke's petition for a writ of certiorari. Beuke v. Ohio
(1989), 489 U.S. 1071, 109 S.Ct. 1356, 103 L.Ed.2d 823,
rehearing denied, 492 U.S. 927, 109 S.Ct. 3268, 106 L.Ed.2d 612.
On August 14, 1991, the court of appeals affirmed the
trial court's denial of Beuke's petition for postconviction
relief. We then denied Beuke's motion in support of
jurisdiction appealing that judgment. State v. Beuke (1992),
62 Ohio St.3d 1496, 583 N.E.2d 968, rehearing denied, 63 Ohio
St.3d 1407, 585 N.E.2d 428.
On December 1, 1992, the court of appeals denied Beuke's
application for delayed reconsideration pursuant to State v.
Murnahan, supra. We affirmed the judgment of the court of
appeals (1993), 67 Ohio St.3d 1500, 622 N.E.2d 649, rehearing
denied, 68 Ohio St.3d 1418, 624 N.E.2d 192.
On February 9, 1994, we denied Beuke's motion to reinstate
his appeal. On February 14, 1994 we revoked his prior stay of
execution and set a new execution date of May 16, 1994. Beuke
filed a petition for a writ of certiorari in the Supreme Court
of the United States on March 22, 1994.
4. Case No. 86-1130, William Zuern.
A jury convicted William Zuern of the 1984 aggravated
murder of Phillip Pence. The trial court imposed a sentence of
death. In June 1986, the court of appeals affirmed Zuern's
conviction and sentence. We affirmed the judgment of the court
of appeals on direct appeal in August 1987. 32 Ohio St.3d 56,
512 N.E.2d 585. The Supreme Court of the United States denied
Zuern's petition for a writ of certiorari from this judgment.
Zuern v. Ohio (1988), 484 U.S. 1047, 108 S.Ct. 786, 98 L.Ed.2d
872, rehearing denied, 485 U.S. 972, 108 S.Ct. 1252, 99 L.Ed.2d
449.
On December 4, 1991, the court of appeals affirmed the
trial court's dismissal of his petition for postconviction
relief. We overruled a motion for jurisdiction appealing from
that judgment. State v. Zuern (1991), 63 Ohio St.3d 1458, 590
N.E.2d 752, rehearing denied, 64 Ohio St.3d 1406, 591 N.E.2d
1249.
Zuern initiated a collateral action under R.C. 149.43 to
gain access to certain records of the Hamilton County Sheriff.
That litigation concluded in 1990, when we affirmed the
judgment of the court of appeals mandating the release of
certain records. State ex rel. Zuern v. Leis (1990), 56 Ohio
St.3d 20, 564 N.E.2d 81.

On September 17 1992, Zuern filed a motion in this court
to reinstate his direct appeal. The state in response filed a
motion to dismiss, which this court granted on November 18,
1992. 65 Ohio St.3d 1455, 602 N.E.2d 251. On December 2,
1992, we overruled Zuern's motion for delayed appeal and
memorandum in support of jurisdiction. 65 Ohio St.3d 1463, 602
N.E.2d 1172. We last set Zuern's execution date for October 5,
1992.
5. Case No. 86-1499, Billy Joe Sowell.
A three-judge panel convicted Sowell of the 1983
aggravated murder of Calvert Graham and sentenced him to
death. The court of appeals affirmed the conviction and
sentence. We rejected Sowell's sixteen propositions of law and
affirmed its judgment. State v. Sowell (1988), 39 Ohio St.3d
322, 530 N.E.2d 1294, rehearing denied, 40 Ohio St.3d 710, 534
N.E.2d 851. Sowell applied for a writ of certiorari in the
Supreme Court of the United States, which was denied. Sowell
v. Ohio (1989), 490 U.S. 1028, 109 S.Ct. 1766, 104 L.Ed.2d 201,
rehearing denied, 490 U.S. 1096, 109 S.Ct. 2444, 104 L.Ed.2d
999.
Sowell filed a petition for postconviction relief, which
the trial court denied. The court of appeals affirmed on June
26, 1991. 73 Ohio App.3d 672, 598 N.E.2d 136. We rejected
Sowell's effort to appeal the judgment of the court of appeals
in 1991. 62 Ohio St.3d 1456, 579 N.E.2d 1394, rehearing
denied, 62 Ohio St.3d 1485, 581 N.E.2d 1391.
Sowell filed a motion for delayed reconsideration in the
court of appeals pursuant to State v. Murnahan, supra, which
was denied on October 1, 1992. We affirmed the judgment of the
court of appeals on November 17, 1993. 67 Ohio St.3d 1500, 622
N.E.2d 649, rehearing denied, 68 Ohio St.3d 1418, 624 N.E.2d
192.
On March 9, 1994, we revoked his stay of execution and set
a new execution date for June 7, 1994. Sowell filed a petition
for a writ of certiorari in the Supreme Court of the United
States on March 22, 1994.
6. Case No. 86-1597, Albert Holloway.
On August 30, 1984, a grand jury indicted Albert Holloway
for the aggravated murder of eighty-four-year-old Clara
Wilson. Ultimately, a jury found Holloway guilty and the trial
court imposed a sentence of death. The court of appeals
affirmed his sentence and conviction. State v. Holloway (July
23, 1986), Hamilton App. No. C-840871, unreported. In 1988, we
affirmed Holloway's conviction. 38 Ohio St.3d 239, 527 N.E.2d
831, rehearing denied (1989), 44 Ohio St.3d 716, 542 N.E.2d
1113. Holloway sought further review by the United States
Supreme Court, which denied certiorari in Holloway v. Ohio
(1989), 492 U.S. 925, 109 S.Ct. 3261, 106 L.Ed.2d 606.
Having exhausted his direct appeals, Holloway filed a
petition for postconviction relief, which was denied by the
trial court and affirmed by the court of appeals. (Jan. 29,
1992), Hamilton App. No. C-900850, unreported. Thereafter, we
declined to accept jurisdiction. State v. Holloway (1992), 64
Ohio St.3d 1417, 593 N.E.2d 7, rehearing denied, 64 Ohio St.3d
1445, 596 N.E.2d 474.
Holloway then pursued his Murnahan appeal, which we
ultimately denied in 1993, 67 Ohio St.3d 1485, 621 N.E.2d 407,

rehearing denied, 68 Ohio St.3d 1412, 623 N.E.2d 568. We
likewise rejected Holloway's motion to reinstate. State v.
Holloway, (1993), 67 Ohio St.3d 1487, 621 N.E.2d 409, rehearing
denied, 68 Ohio St.3d 1411, 623 N.E.2d 567.
On February 2, 1994, we set Holloway's execution date for
May 3, 1994.
7. Case No. 87-243, Dewaine Poindexter.
Dewaine Poindexter's aggravated murder trial concluded on
May 15, 1985. The jury recommended the death sentence and the
trial court concurred. The court of appeals affirmed
Poindexter's convictions and sentence in all respects. State
v. Poindexter (Dec. 24, 1986), Hamilton App. No. C-850394,
unreported. We rejected Poindexter's sixteen propositions of
law and affirmed the judgment of the court of appeals in State
v. Poindexter (1988), 36 Ohio St.3d 1, 520 N.E.2d 568. The
United States Supreme Court denied certiorari. Poindexter v.
Ohio (1988), 488 U.S. 916, 109 S.Ct. 272, 102 L.Ed.2d 261,
rehearing denied (1989), 489 U.S. 1047, 109 S.Ct. 1181, 103
L.Ed.2d 247.
Thereafter, Poindexter pursued his postconviction
remedies. The trial court denied his petition, and the court
of appeals affirmed. (Mar. 6, 1991), Hamilton App. No.
C-890734, unreported. Thereafter, we declined to accept
jurisdiction. State v. Poindexter (1991), 61 Ohio St.3d 1430,
575 N.E.2d 218. On October 27, 1993, we dismissed Poindexter's
Murnahan appeal. 67 Ohio St.3d 1485, 621 N.E.2d 407, rehearing
denied, 68 Ohio St.3d 1412, 623 N.E.2d 568. Poindexter's
motion for delayed reinstatement was completed when we denied
rehearing in State v. Poindexter (1993), 68 Ohio St.3d 1411,
623 N.E.2d 567.
Five times we have set a date for Poindexter's execution,
the last of which was March 15, 1994.
8. Case No. 87-447, Jerome Henderson.
Jerome Henderson was convicted of aggravated murder and
sentenced to death for the March 3, 1985 multiple stabbing of
Mary Acoff. The court of appeals affirmed his conviction and
death sentence, and we affirmed in State v. Henderson (1988),
39 Ohio St.3d 24, 528 N.E.2d 1237, rehearing denied, 39 Ohio
St.3d 722, 534 N.E.2d 358. The United States Supreme Court
declined to accept jurisdiction in Henderson v. Ohio (1989),
489 U.S. 1072, 109 S.Ct. 1357, 103 L.E.2d 824, rehearing
denied, 490 U.S. 1042, 109 S.Ct. 1947, 104 L.Ed.2d 417.
We rejected Henderson's Murnahan appeal in 1993, 67 Ohio
St.3d 1485, 621 N.E.2d 407, rehearing denied, 68 Ohio St.3d
1412, 623 N.E.2d 568. Henderson's motion to reinstate his
appeal was similarly denied on October 27, 1993. 67 Ohio St.3d
487, 621 N.E.2d 409, rehearing denied, 68 Ohio St.3d 1411, 623
N.E.2d 567.
Henderson's fifth execution date was set for March 15,
1994.
9. Case No. 88-1079, John R. Hicks.
John R. Hicks was convicted and sentenced to death for the
August 2, 1985 murder of his five-year-old stepdaughter and her
maternal grandmother. We affirmed his conviction and death
sentence. State v. Hicks (1989), 43 Ohio St.3d 72, 538 N.E.2d
1030, rehearing denied, 44 Ohio St.3d 706, 541 N.E.2d 626. His
direct appeal concluded on March 19, 1990 when the United

States Supreme Court denied jurisdiction. Hicks v. Ohio
(1990), 494 U.S. 1038, 110 S.Ct. 1502, 108 L.Ed.2d 636.
Hicks then sought postconviction relief. The court of
appeals affirmed the dismissal of his petition on January 29,
1993, Hamilton App. No. C-910341, unreported, and we denied his
jurisdictional motion. State v. Hicks (1993), 67 Ohio St.3d
1408, 615 N.E.2d 1043.
Hicks then applied for delayed reconsideration under State
v. Murnahan, but on October 27, 1993, we affirmed the decision
of the court of appeals denying relief. 67 Ohio St.3d 1485,
621 N.E.2d 407, rehearing denied, 68 Ohio St.3d 1412, 623
N.E.2d 568. That same date, we rejected Hicks's motion for
reinstatement of his direct appeal. State v. Hicks (1993), 67
Ohio St.3d 1487, 621 N.E.2d 409, rehearing denied, 68 Ohio
St.3d 1411, 623 N.E.2d 568.
We last set Hicks's execution date for March 15, 1994.
10. Case No. 88-1286, Derrick Jamison.
On October 12, 1985, a jury found Derrick Jamison guilty
of the aggravated murder of Gary Mitchell. Following the
jury's death penalty recommendation, the trial court sentenced
him to death. Jamison appealed, and the court of appeals
affirmed his conviction and sentence. State v. Jamison (Feb.
17, 1988), Hamilton App. No. C-850753, unreported. We also
affirmed Jamison's conviction and death sentence. State v.
Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180, rehearing
denied, 50 Ohio St.3d 712, 553 N.E.2d 1368. Jamison sought
review by the United States Supreme Court, which denied his
petition for a writ of certiorari. Jamison v. Ohio (1990), 498
U.S. 881, 111 S.Ct. 228, 112 L.Ed.2d 183.
Jamison's postconviction proceedings concluded on April
14, 1993, when we refused to accept jurisdiction. 66 Ohio
St.3d 1459, 610 N.E.2d 423, rehearing denied, 66 Ohio St.3d
1490, 612 N.E.2d 1245. His Murnahan appeal was dismissed when
we overruled his jurisdictional motion in State v. Jamison
(1993), 66 Ohio St.3d 1456, 610 N.E.2d 421.
We last set Jamison's execution date for March 15, 1994.
The causes are now before this court upon motions to
prohibit filing of further pleadings in courts of Ohio without
leave of the Ohio Supreme Court.

Joseph T. Deters, Hamilton County Prosecuting Attorney,
and William E. Breyer, Assistant Prosecuting Attorney, for
appellee in case Nos. 86-193, 86-512, 86-642 and 86-1130.
Joseph T. Deters, Hamilton County Prosecuting Attorney,
and Christian J. Schaefer, Assistant Prosecuting Attorney, for
appellee in case Nos. 86-1499, 87-243, 87-447 and 88-1079.
Joseph T. Deters, Hamilton County Prosecuting Attorney,
and L. Susan Laker, Assistant Prosecuting Attorney, for
appellee in case No. 86-1597.
Joseph T. Deters, Hamilton County Prosecuting Attorney,
William E. Breyer and Christian J. Schaefer, Assistant
Prosecuting Attorneys, for appellee in case No. 88-1286.
David H. Bodiker, Ohio Public Defender, Dale A. Baich,
Cynthia A. Yost and Kevin L. Fahey, Assistant State Public
Defenders, for appellant Steffen.
David H. Bodiker, Ohio Public Defender, Joann Bour-Stokes
and Richard J. Vickers, Assistant State Public Defenders, for

appellant Byrd.
David H. Bodiker, Ohio Public Defender, and Randall L.
Porter, Assistant State Public Defender; and Kenneth Murray,
for appellant Beuke.
David H. Bodiker, Ohio Public Defender, and Jane P. Perry,
Assistant State Public Defender, for appellant Zuern.
David H. Bodiker, Ohio Public Defender, and Pamela Prude-
Smithers, Assistant State Public Defender; and Michael Siegler,
for appellant Sowell.
David H. Bodiker, Ohio Public Defender, Jane P. Perry and
Linda E. Prucha, Assistant State Public Defender, for appellant
Holloway.
David H. Bodiker, Ohio Public Defender, and William S.
Lazarow, Assistant State Public Defender, for appellants
Poindexter and Hicks.
Reinhart Law Office and Harry R. Reinhart; Simmons, Meyer
& Kort and Gerald G. Simmons, for appellant Henderson.
David H. Bodiker, Ohio Public Defender, Randall L. Porter
and J. Joseph Bodine, Jr., Assistant State Public Defenders,
for appellant Jamison.
Lee Fisher, Attorney General, Richard Cordray, State
Solicitor, and Simon B. Karas, Deputy Chief Counsel, urging
granting of motion in case No. 86-512.

Moyer, C.J. The constitutions and courts of our country
have established procedural safeguards reflecting our society's
concern for the rights of citizens accused of committing
crimes. When those safeguards are used to thwart judgments
rendered pursuant to the procedures, it is predictable that
citizens will lose confidence in the ability of the criminal
justice system to enforce its judgments. The propriety of the
ultimate criminal sentence -- the death penalty -- has been and
will continue to be a subject of vigorous and passionate
debate. The death penalty evokes the full spectrum of human
reason, emotions and moral beliefs.
Whatever one's views regarding capital punishment, the
reality is that some thirteen years ago the General Assembly
adopted a death penalty as the public policy of this state.
The courts have declared the law to be constitutional; this
court has affirmed eighty-seven death penalties, and the law
has not yet been fully implemented. That fact creates doubt
about the ability of the justice system to carry out the death
penalty and, perhaps even more importantly, a perception that
the entire criminal justice system is not working. Inaccurate
as those perceptions are, they do persist.
Ohio's present death penalty statute was enacted in 1981,
following the United States Supreme Court's decision in Gregg
v. Georgia (1976), 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d
859. Convicted persons have engaged in sometimes ingenious,
sometimes frivolous courses of conduct that have successfully
thwarted imposition of the death sentence. The judiciary has
participated in this endeavor by adhering to procedures
intended to ensure that every effort is made to protect due
process and to determine guilt.
Herein lies the internal conflict that death row inmates
have seized upon and used to their advantage. We, as a
society, are justifiably tentative about imposing death as a

punishment for crimes. Having assumed the power to take life,
we have striven for a level of assurance in our decisions that
is probably not humanly possible. We have created a web of
procedures so involved that they threaten to engulf the penalty
itself. We arrive at a point, however, where greater certitude
is not reasonably possible. There comes a time where the
possibility that something else can be discovered approaches
the vanishing point. Then we must end our inquiry and act upon
the conclusion we have reached. Procrastination will not
satisfy the soul.
In Ohio, many death penalty actions are reaching the point
of judicial saturation. As in the cases presently before us,
the criminal justice system has more than satisfied the
defendants' constitutional rights to due process and fair
trials. Their convictions have been viewed and reviewed.
In each of the ten cases before us, we have set or been
asked to set an execution date. State review has effectively
been exhausted, and the judiciary's role should now be to
accept the decision reached by so many. The prosecution
requests that the defendants herein be prohibited from filing
any new state court pleadings without first obtaining leave of
this court. We do not believe it to be within the court's
power to prohibit all filings; however, we do have the
constitutional and statutory power to prohibit further stays of
execution ordered by this court except upon a showing of good
cause.
I
The relief requested by the state is unprecedented and
extraordinary. The reasons to grant the relief are
compelling. We can and do hereby grant that relief to the
extent allowed by the Constitution and statutes of Ohio.
Section 2(B)(1)(f), Article IV of the Constitution of Ohio
grants original jurisdiction to this court "[i]n any cause on
review as may be necessary to its complete determination." We
have interpreted this provision to authorize judgments in this
court that are necessary to achieve closure and complete relief
in actions pending before the court. State ex rel. Polcyn v.
Burkhart (1973), 33 Ohio St.2d 7, 62 O.O.2d 202, 292 N.E.2d 883
(ordering Clerk of the Toledo City Council to correct
initiative proposition to allow inclusion on ballot, because
existing statutory procedures did not authorize appellant board
of elections to make corrections); State ex rel. Owens v.
Campbell (1971), 27 Ohio St.2d 264, 56 O.O.2d 158, 272 N.E.2d
116, overruled on other grounds, State v. Thomas (1980), 61
Ohio St.2d 254, 15 O.O.3d 262, 400 N.E.2d 897 (entering
judgment ordering prison warden to release appellant-prisoner,
despite failure of appellant to join warden as nominal party).
We conclude from these cases that Section 2(B)(1)(f), Article
IV of the Ohio Constitution authorizes this court to enter such
judgments in causes it hears on review as are necessary to
provide a complete and final determination thereof.
We have exercised our original jurisdiction conferred by
Section 2(B)(1), Article IV to prevent the abuse of the trial
and appellate courts by repeated and vexatious lawsuits. Thus,
we issued a peremptory writ of prohibition to prevent a trial
court from proceeding in a suit in which the plaintiffs were
wrongfully attempting to relitigate claims and issues that had

already been decided adversely to them. State ex rel. Stark v.
Summit Cty. Court of Common Pleas (1987), 31 Ohio St.3d 324, 31
OBR 599, 511 N.E.2d 115. We emphasized that prohibition was a
writ to be used with great caution and only in the presence of
extraordinary circumstances. Nevertheless, we concluded that
the plaintiffs' actions in that case constituted such
circumstances.
We reached a similar holding in Commercial Savings Bank v.
Wyandot Cty. Court of Common Pleas (1988), 35 Ohio St.3d 192,
519 N.E.2d 647. In that case, certain individuals had
initiated numerous repetitive civil actions seeking the same or
related relief. In addition, these persons had initiated
numerous actions against the judges involved in their cases,
alleging bias and conspiracies to deny their constitutional
rights. We concluded from this pattern of behavior that these
persons were "attempting to use the legal system to both harass
the relators and stall the judicial process." Id. at 193, 519
N.E.2d at 649. We consequently issued a writ prohibiting the
court of common pleas from proceeding in any legal actions that
had been or might be filed arising from the legal and factual
issues involved in the cases that were currently pending.1
II
In addition to the powers granted by Section 2(B)(1),
Article IV of the Constitution of Ohio, Section 5(A)(1),
Article IV grants this court general supervisory power over the
courts of Ohio.
Section 5(A)(1) provides: "In addition to all other powers
vested by this article in the supreme court, the supreme court
shall have general superintendence over all courts in the
state. Such general superintending power shall be exercised by
the chief justice in accordance with rules promulgated by the
supreme court."
Pursuant to this power, the Supreme Court of Ohio has
promulgated the Rules of Superintendence for Courts of Ohio.
The preface to the Rules of Superintendence states: "Delay and
inconsistency in the disposition of matters in the courts of
Ohio are an ongoing concern in the administration of justice.
It is to be remembered that the courts are created not for the
convenience or benefit of the judges and lawyers, but to serve
the litigants and the interests of the public at large. When
cases are unnecessarily delayed, the confidence of all people
in the judicial system suffers. The confidence of the people
in the ability of our system of government to achieve liberty
and justice under law for all is the foundation upon which the
American system of government is built."
We have stated that the Rules of Superintendence are
designed "(1) to expedite the disposition of both criminal and
civil cases in the trial courts of this state, while at the
same time safeguarding the inalienable rights of litigants to
the just processing of their causes; and (2) to serve that
public interest which mandates the prompt disposition of all
cases before the courts." State v. Singer (1977), 50 Ohio
St.2d 103, 109-110, 4 O.O.3d 237, 240-241, 362 N.E.2d 1216,
1220.
We have recognized the jurisdiction conferred upon this
court by the Ohio Constitution confers also "such inherent
jurisdiction as is necessary to enable it to function under the

Constitution." Tuck v. Chapple (1926), 114 Ohio St. 155, 156,
151 N.E. 48, 49. We further held, "[c]ourts possess all powers
necessary to secure and safeguard the free and untrammeled
exercise of their judicial functions." In re Furnishings for
Courtroom Two (1981), 66 Ohio St.2d 427, 430, 20 O.O.3d 367,
369, 423 N.E.2d 86, 88 (citing State ex rel. Foster v. Bd. of
Cty. Commrs. [1968], 16 Ohio St.2d 89, 45 O.O.2d 442, 242
N.E.2d 884, paragraph two of the syllabus).
We have guarded our general supervisory power over the
court system from encroachment by the lower courts. In Melling
v. Stralka (1984), 12 Ohio St.3d 105, 12 OBR 149, 465 N.E.2d
857, a municipal court judge issued an order prohibiting the
city solicitor, law director, assistants thereof, prosecutors,
or assistants thereof from representing any defendants in
criminal matters in municipal court. We held that the judge
lacked the authority to issue such an order, reasoning that the
order established, in effect, a "disciplinary rule" limiting
the ability of certain members of the bar to practice before
the court. Citing Sections 2(B)(1) and 5(B), Article IV of the
Ohio Constitution, we held that such disciplinary rules were
"within the exclusive authority of the Supreme Court, and they
may not be promulgated by the trial or appellate courts of this
state." Id. at 107, 12 OBR at 151, 465 N.E.2d at 859.
Concurrent with this court's supervisory power is our
responsibility to assure finality to judgments. The purpose of
a court is to resolve controversies, not to prolong them. When
issues are constantly relitigated, there is no resolution and
hence no finality. Such is the case with some death penalty
appeals. The system threatens to devour itself unless the only
tribunal with the ultimate authority to do so acts to take
decisive action.
III
A criminal conviction rebuts the presumption of innocence,
and a criminal no longer has the constitutional right to bail
after conviction. Coleman v. McGettrick (1965), 2 Ohio St.2d
177, 31 O.O.2d 326, 207 N.E.2d 552; In re Thorpe (1936), 132
Ohio St. 119, 7 O.O. 224, 5 N.E.2d 333. Nor do trial courts
have the inherent power to suspend execution of sentence in a
criminal case. Mun. Court of Toledo v. State ex rel. Platter
(1933), 126 Ohio St. 103, 184 N.E. 1, paragraph three of the
syllabus. Suspension of execution must be authorized by
statute. Id.
Our practice has been to set execution dates ninety days
from the date of the entry affirming the judgment of the court
of appeals pursuant to our authority under R.C. 2949.22(C).
Our power to suspend during the pendency of appeal is the same
as the power of the trial court or the court of appeals. R.C.
2953.10.
Furthermore, discretionary authority to suspend execution
is vested in this court during postconviction proceedings.
R.C. 2953.21(H). A postconviction stay, unlike a direct-appeal
stay, is not a constitutional right. Indeed, postconviction
state collateral review itself is not a constitutional right,
even in capital cases. Murray v. Giarratano (1989), 492 U.S.
1, 109 S.Ct. 2765, 106 L.Ed.2d 1; Pennsylvania v. Finley
(1987), 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539. A
postconviction proceeding is not an appeal of a criminal

conviction, but, rather, a collateral civil attack on the
judgment. See State v. Crowder (1991), 60 Ohio St.3d 151, 573
N.E.2d 652. Postconviction review is a narrow remedy, since
res judicata bars any claim that was or could have been raised
at trial or on direct appeal. State v. Duling (1970), 21 Ohio
St.2d 13, 50 O.O.2d 40, 254 N.E.2d 670; State v. Perry (1967),
10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104.
Among the last judicial actions taken in the criminal
appeals of these ten cases are the entries of this court
setting the dates of execution. It is these entries that must
be stayed regardless of the forum in which the case further
challenging the conviction or sentence arises. A trial court
or court of appeals may stay its own postconviction judgment,
but it may not stay the judgment of this court setting the date
for execution. This court is vested with singular authority
within the state system to stay its own judgments.
We therefore conclude that an execution set by the Supreme
Court of Ohio may not be stayed by any other state court.
R.C. 2953.21 creates the remedy of postconviction relief
for those convicted of crimes. R.C. 2953.23(A) provides that
"*** the court may, in its discretion and for good cause shown,
entertain a second petition or successive petitions for similar
relief on behalf of the petitioner based upon the same facts or
on newly discovered evidence." The effect of the "good cause"
requirement of R.C. 2953.23(A) is to place the entertainment of
a successive petition for postconviction relief within the
sound discretion of the trial court. See State ex rel. Workman
v. McGrath (1988), 40 Ohio St.3d 91, 532 N.E.2d 105.
IV
The Supreme Court of the United States has recently
addressed the problem of multiple successive federal habeas
corpus petitions. In McCleskey v. Zant (1991), 499 U.S. 467,
111 S.Ct. 1454, 113 L.Ed.2d 517, the Supreme Court clarified
the doctrine of abuse of the writ, and clearly laid out the
circumstances under which a federal habeas corpus petitioner
could bring a successive habeas claim.
The court adopted the "cause and prejudice" standard for
determining whether a federal court could entertain a
successive habeas petition. Under this standard, the
petitioner must show "'some objective factor external to the
defense impeded counsel's efforts'" to raise the claim in his
prior petition. Id. at 493, 111 S.Ct. at 1470, 113 L.Ed.2d at
544. Interference by public officials, a showing that the
factual or legal basis for the claim was not reasonably
available, or the ineffective assistance of counsel could
constitute such just cause. Id. at 493-494, 111 S.Ct. at 1470,
113 L.Ed.2d at 544. After the petitioner has shown such cause,
he must then show actual prejudice flowing therefrom. Id. at
494, 111 S.Ct. at 1470, 113 L.Ed.2d at 544.
The cause and prejudice standard also includes a fail-
safe. When a petitioner is unable to make a showing of just
cause for failure to raise the claim previously, a federal
court may nevertheless entertain the petition in a narrow class
of cases where there exist extraordinary circumstances that
have probably caused the conviction of one who is not guilty of
the crime. The court described this class of cases as those
"implicating a fundamental miscarriage of justice." Id. at

494, 111 S.Ct. at 1470, 113 L.Ed.2d at 545.
The reasoning behind the Supreme Court's adoption of the
cause and prejudice standard in federal habeas cases echoes
strikingly this court's concerns as articulated in the preamble
to the Rules of Superintendence, supra. The court noted that
the erosion of the finality of judgments in criminal cases
undermines the deterrent effect of criminal law. Id. at
490-491, 111 S.Ct. at 1468, 113 L.Ed.2d at 542 (citing Teague
v. Lane [1989], 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d
334). A lax standard for habeas corpus review might give
litigants incentives to withhold claims in order to manipulate
the system and create disincentives to present fresh claims.
Id., 499 U.S. at 491-492, 111 S.Ct. at 1469, 113 L.Ed.2d at
543. The court summarized these principles in an eloquent
statement taken from the Harvard Law Review:
"A procedural system which permits an endless repetition
of inquiry into facts and law in a vain search for ultimate
certitude implies a lack of confidence about the possibilities
of justice that cannot but war with the effectiveness of
underlying substantive commands. *** There comes a point where
a procedural system which leaves matters perpetually open no
longer reflects humane concern but merely anxiety and a desire
for immobility." Bator, Finality in Criminal Law and Federal
Habeas Corpus for State Prisoners (1963), 76 Harv.L.Rev. 441,
at 452-453.
The Supreme Court acknowledged a state's inherent power to
impose finality on its judgments. "Our federal system
recognizes the independent power of a State to articulate
societal norms through criminal law; but the power of a State
to pass laws means little if the State cannot enforce them."
Id., 499 U.S. at 491, 111 S.Ct. at 1468, 113 L.Ed.2d at 543.
Based on the aforementioned authorities from this court
and the Supreme Court of the United States and acknowledging
the provisions of R.C. 2953.21(H), we conclude that this court
possesses the authority to enforce the finality of judgments in
criminal cases. We will do so by prohibiting, in certain
cases, the granting of any further stays of execution in
capital cases except upon a showing, in this court, of good
cause for allowing the petitioner to go forward in a
postconviction proceeding.
We therefore hold the following: When a criminal defendant
has exhausted direct review, one round of postconviction
relief, and one motion for delayed reconsideration under State
v. Murnahan in the court of appeals and in the Supreme Court,
any further action a defendant files in the state court system
is likely to be interposed for purposes of delay and would
constitute an abuse of the court system. In order to prevent
such abuse, this court will fashion appropriate relief upon
application by the prosecuting authority.
The defendant wishing to stay his execution to engage
further state court proceedings must petition this court for
such a stay. The petitioner must then satisfy the "cause and
prejudice" standard as articulated in McCleskey, supra. We
believe that the McCleskey standard properly balances the need
for finality of judgments against the need for protection of
those defendants who can demonstrate either cause for failing
previously to raise a ground for litigation or circumstances

constituting a fundamental miscarriage of justice, if the
conviction were to stand.
Having concluded that the trial courts and courts of
appeals in these cases have no authority to enter stays of
execution of the orders of this court, we enter the following
order in the interest of expediting justice. The motions by
appellee to prohibit filing of further pleadings are sustained
to the extent that the trial courts and courts of appeals may
issue no orders affecting the stays of execution. It is
further ordered that a stay of the orders of any Ohio courts
setting the dates for execution for the appellants herein are
hereby denied.
Motions granted.
A.W. Sweeney, Douglas, Wright, Resnick, F.E. Sweeney and
Pfeifer, JJ., concur.

FOOTNOTE:
1 This court did not, however, grant all relief requested
by the relators. Noting that this court lacks original
jurisdiction in injunction, it declined to issue such an
injunction prohibiting the litigants from filing future
actions. In doing so, the court followed the teaching of State
ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40
O.O.2d 141, 228 N.E.2d 631, paragraph four of the syllabus.
There, we held that a complaint for a writ of mandamus that in
reality requested injunctive relief must be dismissed for want
of jurisdiction because neither the court of appeals nor the
Supreme Court possesses original injunctive power.