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March 19, 2026 Get Citation Alerts Download PDF Add Note

State v. Fung

Ohio Court of Appeals

• Citations: 2026 Ohio 940
• Docket Number: 115593

• Judges: Calabrese

• Opinion

• Authorities (2)

• Cited By (0)

• Summaries (0)

• Similar Cases (2.6K)

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Syllabus

Successive petition for postconviction relief; res judicata; newly discovered evidence; bootstrapping; bootstrap; App.R. 4(A)(1). Dismissed. Appellant's appeal of a successive petition for postconviction relief is dismissed because the petition was res judicata and the appeal is an impermissible attempt at bootstrapping.

Combined Opinion

                        by [Anthony Orlando Calabrese Jr.](https://www.courtlistener.com/person/8063/anthony-orlando-calabrese-jr/)

[Cite as State v. Fung, 2026-Ohio-940.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 115593
v. :

CHEUK LUN FUNG, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: March 19, 2026

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-98-365106-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Matthew W. Moretto, Assistant Prosecuting
Attorney, for appellee.

Cheuk Lun Fung, pro se.

DEENA R. CALABRESE, J.:

Defendant-appellant Cheuk Lun Fung (“Fung”) appeals the trial court’s

denial of his successive petition for postconviction relief (“second petition”). We

dismiss Fung’s appeal because we find that the second petition was res judicata and

the appeal is an impermissible attempt at bootstrapping.
I. Relevant Facts and Procedural History

Fung’s conviction stems from events that took place in May 1998. Fung

traveled from the San Francisco area of California to Ohio with two other

individuals, Richard H. Chu (“Chu”) and Yuriko Kawaguchi (“Kawaguchi”). In Ohio,

Kawaguchi proceeded to purchase mass quantities of electronics, mainly computers

and printers, from various Cleveland area stores at Chu’s and Fung’s direction. The

electronics were charged to counterfeit credit cards. The trio was apprehended by

Mayfield Heights police officers after difficulties with a counterfeit credit card at the

Mayfield Heights Best Buy.

All three individuals involved were indicted. Kawaguchi later agreed to

testify against Fung and Chu. Fung and Chu were each convicted of one count of

engaging in a pattern of corrupt activity pursuant to R.C. 2923.32, seven counts of

forgery pursuant to R.C. 2913.31, seven counts of uttering pursuant to R.C. 2913.31,

three counts of theft pursuant to R.C. 2913.02, three counts of misusing a credit card

pursuant to R.C. 2913.21, one count of tampering with records pursuant to R.C.

2913.42, and one count of possessing criminal tools pursuant to R.C. 2923.24.1

The trial court sentenced Fung to six years of incarceration. Fung and

Chu appealed, and in State v. Chu, 2003-Ohio-551, ¶ 43 (8th Dist.), this court found

that the trial court erred when it did not state either of the two reasons why it

diverted from the minimum sentence as mandated by R.C. 2929.14(A) and

1 A more detailed recitation of the facts in the underlying case can be found in State

v. Chu, 2000 Ohio App. LEXIS 28 (8th Dist. Jan. 6, 2000).
remanded for resentencing. On May 1, 2003, Fung was resentenced to two years of

incarceration. Fung was then released because he had already served four years.

On May 16, 2025, Fung submitted a public-records request to the

Cuyahoga County Prosecutor’s Office (“the State”) seeking the file from his case. On

June 27, 2025, the State provided the file, which consisted of 284 pages, in response

to Fung’s request.

On July 15, 2025, Fung filed a petition for postconviction relief (“first

petition”) with the trial court. In the first petition, Fung asserted that he obtained

newly discovered evidence through his public-records request and based on that

evidence he sought postconviction relief pursuant to R.C. 2953.21 and

2953.23(A)(1)(a)-(b). On July 24, 2025, the State filed a motion to dismiss Fung’s

first petition. On July 28, 2025, the trial court denied Fung’s first petition. Fung

did not appeal this order.

On August 26, 2025, Fung filed a second petition for postconviction

relief. The second petition largely mirrored the first petition; Fung asserted that he

obtained newly discovered evidence through his public-records request and based

on that evidence he sought postconviction relief pursuant to R.C. 2953.21 and

2953.23(A)(1)(a)-(b). The second petition included arguments that were not in the

first petition. The new arguments were based on the documents Fung obtained from

his public-records request. On August 28, 2025, the State filed a motion to dismiss

Fung’s second petition, arguing that the second petition was res judicata. On August
29, 2025, the trial court granted the State’s motion to dismiss Fung’s second

petition. This appeal stems from the trial court’s August 29, 2025 order.

Fung raises the following four assignments of error for our review:

1. The trial court erred by applying res judicata to dismiss Appellant’s
   claim regarding the suppressed criminal history of the State’s sole
   eyewitness, Kawaguchi. The prosecution actively concealed this
   impeachment evidence, and Appellant was unavoidably prevented
   from discovering it earlier. The State’s own August 28, 2025, Motion
   to Dismiss confirmed suppression but sought to excuse it as “only an
   arrest,” a position contrary to Brady and Giglio. The jury was entitled
   to know that the sole eyewitness had been arrested for theft – the very
   same type of crime at issue – because such evidence directly bears on
   truthfulness and credibility. Concealing it fatally undermines
   confidence in the verdict.

2. The trial court erred in applying res judicata to bar Appellant’s Giglio
   claim. The June 27, 2025, internal file revealed for the first time that
   the prosecution had coordinated with immigration authorities before
   trial, a fact suppressed since 1998. The State’s own July 24, 2025,
   Motion to Dismiss crystallized the legal significance of this evidence by
   denying any proof of pretrial knowledge. Because this evidence was
   newly discovered and could not have been raised in the initial petition,
   Appellant satisfied the statutory standard for unavoidable prevention.

3. The trial court erred in applying res judicata to dismiss Appellant’s
   claim regarding the suppressed surveillance report. The State’s own
   later admission proved it withheld this exculpatory evidence, which
   directly contradicted the eyewitness’s testimony. This constitutes a
   new and material Brady violation that was unavailable to Appellant
   prior to his Successive Petition.

4. The trial court erred in dismissing Appellant’s claim regarding the
   prosecution’s manipulation of discovery. The newly discovered
   evidence demonstrates a broader pattern of prosecutorial bad faith,
   including the substitution of a sanitized synopsis, the concealment of
   the co-defendant’s statement, and selective use of criminal history
   records. These actions, which prevented Appellant from discovering
   crucial evidence, cumulatively demonstrate that Appellant was
   deprived of a fair trial.
   II. Law and Analysis

We will address Fung’s four assignments of error together for ease of

analysis. Assignments of error Nos. 1, 2, and 3 each assert that Fung’s second

petition was not res judicata. In addition, each of the four assignments of error rely

on information obtained from Fung’s public-records request.

Fung does not dispute that his first and second petitions both relied

on the 284 pages he received from the State in response to his public-records

request. In his appellate brief, Fung asserts that his second petition contained new

evidence that was not in his first petition. Fung asserts that the State’s July 24, 2025

and August 29, 2025 motions to dismiss Fung’s petitions contain admissions of

prosecutorial misconduct.

Our review in this matter is limited to the trial court’s August 29, 2025

order denying Fung’s second petition. App.R. 4(A)(1) provides that “a party who

wishes to appeal from an order that is final upon its entry shall file the notice of

appeal required by App.R. 3 within 30 days of that entry.”

Fung filed a timely notice of appeal of the August 29, 2025 order

granting the State’s motion to dismiss his second petition. However, Fung’s second

petition is res judicata. Fung’s petitions were largely identical and both were based

on documents he received from his public-records request. “An issue raised in a

previous petition for post-conviction relief is res judicata on a subsequent motion

for post-conviction relief.” (Citations omitted.) State v. Brooks, 1999 Ohio App.
LEXIS 3223, * 4-5 (8th Dist. July 8, 1999). Issues that could have been raised in a

previous petition are also res judicata. Id. at * 6.

The issues in Fung’s second petition were or could have been before

the trial court in the first petition. Fung does not dispute that the 284 pages of

documents he obtained from his public-records request were the basis for both

petitions. Although Fung added new arguments to the second petition, the new

arguments were based on the documents from the public-records request and could

have been raised in the first petition. Fung asserts that statements made in the

State’s motion to dismiss the first petition were admissions and thus new evidence

for the second petition. However, the State’s motion to dismiss Fung’s first petition

was considered by the trial court when the trial court made its determination to deny

Fung’s first petition. Therefore, all issues in Fung’s second petition for

postconviction relief were or could have been before the trial court when it made its

determination on Fung’s first petition. This is the very definition of res judicata.

The record suggests that Fung is attempting to “bootstrap” this appeal

by challenging the trial court’s dismissal of his second petition.

‘“Bootstrapping’ is ‘the utilization of a subsequent order to indirectly
and untimely appeal a prior order that was never directly appealed.’
State v. Williamson, 8th Dist. Cuyahoga No. 102320, 2015-Ohio-5135,
¶ 9. Such attempt is ‘procedurally anomalous and inconsistent with the
appellate rules that contemplate a direct relationship between the
order from which the appeal is taken and the error assigned as a result
of that order’ and is disfavored. Williamson, citing State v. Church, 8th
Dist. Cuyahoga No. 68590, 1995 Ohio App. LEXIS 4838 (Nov. 2, 1995);
Bd. of Health v. Petro, 8th Dist. Cuyahoga No. 104882, 2017-Ohio-
1164, ¶ 12 (noting this court’s consistent declination to consider
bootstrapped claims).”
Cleveland v. Sabetta, 2021-Ohio-4426, ¶ 19 (8th Dist.), quoting State v. Bhambra,

2017-Ohio-8485, ¶ 12 (8th Dist.).

Fung never appealed the trial court’s denial of his first petition.

Instead, he filed a second petition presenting the same issues found in his first

petition, along with additional arguments he could have raised in the first petition.

Because Fung’s present appeal amounts to an attempt at bootstrapping a claim that

is now time barred, we are without jurisdiction to consider the appeal. Sabetta at

¶ 22, citing Bhambra at ¶ 13, citing State v. Cottrell, 2010-Ohio-5254, ¶ 20 (8th

Dist.), and App.R. 4.

For the reasons stated above, we find that Fung’s second petition was

res judicata and that he is attempting to engage in impermissible bootstrapping.

Therefore, Fung’s assignments of error are overruled, and his appeal is dismissed.

It is ordered that appellee recover from appellant costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

DEENA R. CALABRESE, JUDGE

EILEEN T. GALLAGHER, P.J., and
EMANUELLA D. GROVES, J., CONCUR