[Cite as State v. Hubbard, 2026-Ohio-2946.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 115939
v. :
CORDELL HUBBARD, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 30, 2026
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-03-435700-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellee.
Cordell Hubbard, pro se.
SEAN C. GALLAGHER, J.:
Cordell Hubbard appeals the denial of his latest attempt to reopen
his two-decades-old conviction for the murder of Omar Clark (“Clark”). For the following reasons, we affirm the trial court’s denial of the motion for leave to file a
motion for new trial under Crim.R. 33.1
The facts of this case have been dissected many times over and need
not be repeated in detail. State v. Hubbard, 2020-Ohio-2726 (8th Dist.) (denying
motion for leave to file a motion for a new trial); State v. Hubbard, 2016-Ohio-918
(8th Dist.) (attempting to reopen the appellate judgment rendered in State v.
Hubbard, 2004-Ohio-4627 (8th Dist.)); State ex rel. Hubbard v. Fuerst, 2010-Ohio-2489 (8th Dist.) (mandamus action against Cuyahoga County Clerk of Courts
to compel him to release the final jury verdict forms in State v. Cordell Hubbard,
Cuyahoga C.P. No. CR-435700); State v. Hubbard, 2004-Ohio-4627 (8th Dist.);
see also State v. Sailor, 2021-Ohio-2277 (8th Dist.); State v. Sailor, 2014-Ohio1062 (8th Dist.); State ex rel. Sailor v. McDonnell, 2009-Ohio-4378 (8th Dist.);
State v. Sailor, 2004-Ohio-5207 (8th Dist.). It suffices that in 2002, Cordell and
Nichole Hubbard (siblings) were involved in an altercation with Clark over a $20,
PCP-laced cigarette that led to Hubbard shooting Clark 11 times and causing
serious injury to another victim. Hubbard was convicted of complicity to commit
aggravated murder, among other offenses, and sentenced to serve a life sentence
with the possibility of parole after 28 years.
1 The trial court also denied a successive petition for postconviction relief filed
simultaneously with the motion for leave, but Hubbard does not include that denial in this appeal.
Sailor, a friend of Hubbard’s, provided a fabricated alibi for the two.
Sailor, 2004-Ohio-5207 at ¶ 2. Sailor claimed that he was with Hubbard the entire
night of the shooting, that neither of them had been present at the scene of the
shooting, and that they had spent most of their time inside a bar — finally ending
their evening at 4:00 a.m. after the shooting had occurred. Id. at ¶ 20. In addition
to Sailor’s testimony, the surviving victim identified Sailor as the shooter and
Hubbard as the person he was arguing with about the $20, among other witnesses
doing the same. Id. at ¶ 5-6. This led the jury to convict Sailor as the principal
offender.
Before Sailor’s sentencing hearing, Hubbard prepared an affidavit
swearing that he shot and killed Clark in self-defense and that Sailor was not
present. Id. at ¶ 45; State v. Hubbard, 2020-Ohio-2726, ¶ 9 (8th Dist.). Hubbard
had not presented self-defense as a claim during his trial. See generally Hubbard,
2004-Ohio-4627. Hubbard’s affidavit was offered as “newly discovered” evidence
in Sailor’s effort to obtain a new trial, with Sailor feigning ignorance as to
Hubbard’s involvement in Clark’s murder. See Sailor, 2004-Ohio-5207 at ¶ 22.
In 2017, after Sailor served 15 years on the murder conviction, the
Cuyahoga County Prosecutor’s Conviction Integrity Unit evaluated Sailor’s case.
Sailor was exonerated of any involvement in the murder for which he was found
guilty based on testimony from one eyewitness recanting his identification of Sailor
as the shooter and Hubbard’s affidavit confessing to the murder. Sailor, 2021-Ohio2277, ¶ 2 (8th Dist.). According to Sailor, he only discovered Hubbard’s involvement in Clark’s murder after the convictions, which was how he explained lying under
oath regarding Hubbard’s innocence — he claims to have testified based on an
honest belief that Hubbard was with Sailor on the night of Clark’s murder. This led
to Sailor’s murder conviction being vacated and Sailor pleading guilty to perjury and
obstructing justice — receiving a ten-year sentence deemed complete based on the
time already served. Id. at ¶ 4.
Sailor’s wrongful-conviction narrative, however, aged poorly. See
Sailor v. City of Cleveland, et al., Case No. 1:20-CV-660 (N.D. Ohio 2026).2
Following Sailor’s release from prison, Sailor filed an action against the city of
Cleveland claiming misconduct by its officers leading to his wrongful conviction.
Id. The State discovered Sailor’s wrongful-conviction narrative to be based on
what the federal court described as fraud: “The uncontroverted evidence cited
herein demonstrates that [Sailor] has knowingly engaged in a twenty-plus year fraud
through court proceedings, depositions, affidavits, and in the public media, to hide
the fact that from the beginning he knew the details of Omar Clark’s murder . . . .”
Id. Hubbard confessed to Sailor on the night of Clark’s murder, with Sailor
admitting to his knowledge of Hubbard’s guilt in recorded conversations between
him, Hubbard, and others before testifying at the joint trial. Id.
2 The federal district court resolved a motion to dismiss, and for the purposes of
this appeal, the merits of that decision from a legal perspective are irrelevant to the undisputed facts relied on by the court. The facts discussed in that decision weigh on the claims Hubbard advances here, which are primarily focused on his allegations of police misconduct that led to Sailor’s murder conviction.
Thus, Sailor’s trial testimony was fabricated, an attempt to
exonerate him and Hubbard of Clark’s murder. At the time of the recorded
conversations, Sailor expressed concern that his knowledge of Hubbard’s guilt
would obviate the wrongful-imprisonment and police-misconduct claims and that
information was omitted by those wanting to push a different narrative. Id.
Compounding the issue, the undisputed evidence considered by the federal court
demonstrated that Sailor and his wife arranged to pay an eyewitness to recant the
in-court identification of Sailor. Id. At the time of Sailor’s conviction being
vacated, the State was unaware that Sailor’s purported alibi for Hubbard was to
knowingly conceal Hubbard’s involvement in the murder after the fact. Id.
This backstory provides context for Hubbard’s current claim, that the
supposed police misconduct in pursuing Sailor as the principal offender tainted
Hubbard’s trial, with his guilt at the time being based on complicity. To this end,
Hubbard cites a “newly discovered” report in which a vice detective, assisting in
the investigation of Clark’s murder, recounted a conversation with an informant
who implicated Sailor as the person responsible for Clark’s death — similar to the
evidence introduced at trial. The report detailed the detective’s attempt to
investigate further. See id. Hubbard relies on it to claim that the State wrongfully
withheld “exculpatory” evidence because it was the information in the report that
led to Sailor’s indictment and the failure to produce that specific report impacted
Hubbard’s conviction for complicity to commit murder. In other words, according
to Hubbard, the knowledge of the State’s intent to indict Sailor as the shooter and Hubbard as being complicit would have aided Hubbard’s trial theory that Hubbard
was not involved in the murder of Clark.
The specifics of how the report would have aided Hubbard’s defense
are left unexplained, especially considering Hubbard’s sworn confession to shooting
Clark in aid of Sailor’s quest to be exonerated. The so-called new evidence in the
uncovered police report, at best, implicates Sailor as a potential person of interest —
a fact well known to Hubbard well before trial and a fact known not to be true based
on Hubbard’s post-verdict confession.
A party who fails to file a timely motion for new trial must seek leave
from the trial court to file a delayed motion for new trial. State v. Murphy, 2021-Ohio-3925, ¶ 25 (8th Dist.), citing State v. Hale, 2019-Ohio-1890, ¶ 9 (8th Dist.).
We review a trial court’s denial of leave to file an untimely motion for new trial for
an abuse of discretion. State v. Briscoe, 2021-Ohio-4317, ¶ 19 (8th Dist.), citing
State v. Sutton, 2016-Ohio-7612, ¶ 13 (8th Dist.). In determining whether leave
should be granted under Crim.R. 33, the offender must “demonstrate by clear and
convincing proof that he or she was unavoidably prevented from filing the motion
for a new trial.” State v. Hale, 2023-Ohio-3894, ¶ 20 (8th Dist.). Importantly,
“‘[w]hen a defendant seeks leave to file a motion for a new trial under Crim.R. 33(B),
the trial court may not consider the merits of the proposed motion for a new trial
until after it grants the motion for leave.’” Id., quoting State v. Hatton, 2022-Ohio3991, ¶ 30, and State v. Bethel, 2022-Ohio-783, ¶ 41. “‘The sole question before the
trial court when considering whether to grant leave is whether the defendant has established by clear and convincing proof that he was unavoidably prevented from
discovering the evidence on which he seeks to base the motion for a new trial.’” Id.,
citing Hatton at ¶ 30.
A defendant is “unavoidably prevented” from discovering new
evidence if he “‘had no knowledge of the existence of the ground’ supporting the
new-trial motion and could not have learned of the existence of that ground within
the time prescribed for filing a new-trial motion.” State v. Lenard, 2023-Ohio-4529,
¶ 10 (8th Dist.), quoting State v. Conner, 2016-Ohio-301, ¶ 21 (8th Dist.). Under
binding black-letter law, “[a] defendant cannot claim that evidence was
undiscoverable merely because the defendant or his defense counsel did not
undertake to obtain the evidence sooner.” Id. at ¶ 13, citing State v. Jackson, 2019-Ohio-4893, ¶ 20 (8th Dist.), citing State v. Cashin, 2017-Ohio-9289 (10th Dist.).
“‘[I]f a defendant is aware of the evidence at the time of trial, then it is not newly
discovered evidence under Rule 33.’” State v. Ambartsoumov, 2013-Ohio-3011,
¶ 23 (10th Dist.), quoting United States v. Sims, 72 Fed.Appx. 249, 252 (6th Cir.
2003).
Hubbard cannot demonstrate that he was unavoidably prevented
from discovering evidence that Sailor was initially identified by an unidentified
informant as the principal actor. That was the State’s theory at the time of trial based
on eyewitness testimony. Hubbard was well aware of the State’s claims against
Sailor, and more importantly, Hubbard has since stated under oath that he shot
Clark. See Hubbard v. Foley, 2022 U.S. Dist. LEXIS 10887, at *23 (N.D.Ohio Jan. 5, 2022). That Hubbard knowingly permitted Sailor to perjure himself in his
defense does not complicate this review. The information in the police report
implicating Sailor as the shooter is irrelevant to Hubbard’s conviction and was
undisputedly within Hubbard’s knowledge at the time of trial. He therefore was not
unavoidably prevented from discovering the evidence.
The trial court did not err in denying the motion for leave. That
decision is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
EILEEN T. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR