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Date: 08-17-2020

Case Style:

State of Ohio v. Mohamed A. Ibrahim

Case Number: 17AP-557

Judge: Susan Brown

Court: IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

Plaintiff's Attorney: Ron O'Brien, Prosecuting Attorney, and Barbara A.
Farnbacher

Defendant's Attorney:

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Description:














[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.

Outcome: 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.

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