Original Action for Writ of Habeas Corpus.
Jackie Robinson, pro se, PID: 554-458, Trumbull Correctional Institution, (Petitioner).
Mike DeWine, Ohio Attorney General, State Office Tower, (For Respondent).
PER CURIAM OPINION
(¶1} This matter is before the court pursuant to the petition for a writ of habeas corpus filed by Petitioner, Jackie Robinson, against Respondent, Christopher LaRose, Warden of the Trumbull Correctional Institution. Appellant argues he is entitled to a writ of habeas corpus ordering his immediate release from prison because, he claims, he has already served his entire prison sentence. For the reasons that follow, the petition is dismissed.
(¶2} A writ of habeas corpus is the proper remedy for a state prisoner to pursue when he believes that his present incarceration is not lawful. State ex rel. Nelson v. Griffin, 103 Ohio St.3d 167, 2004-Ohio-4754, ¶5. A writ of habeas corpus can only be granted if the petitioner can establish one of two circumstances, i.e., (1) that the sentencing court in his underlying criminal proceeding lacked jurisdiction to convict him, or (2) that he is still being held in prison, although he has already served his entire sentence. State ex rel. Vinson v. Gansheimer, 11th Dist. Ashtabula No. 2007-A-0042, 2007-Ohio-5205, ¶6. "Like other extraordinary-writ actions, habeas corpus is not available when there is an adequate remedy in the ordinary course of law." In re Complaint for Writ of Habeas Corpus for Goeller, 103 Ohio St.3d 427, 2004-Ohio-5579, ¶6. A viable claim for a writ of habeas corpus cannot be predicated on an allegation of the trial court's commission of a non-jurisdictional error since such error can be adequately reviewed in a direct appeal. Tillis v. Gansheimer, 11th Dist. Ashtabula No. 2002-A-0099, 2003-Ohio-1097, ¶10.
(¶3} Further, a court may sua sponte dismiss a petition for an extraordinary writ for failure to state a claim on which relief can be granted if the petition is frivolous or the claimant obviously cannot prevail on the facts alleged in the petition. Hill v. Kelly, 11th Dist. Trumbull No. 2011-T-0094, 2011-Ohio-6341, ¶4.
(¶4} Petitioner argues he is entitled to a writ of habeas corpus because, inter alia: (1) he was sentenced on allied offenses; (2) the grand jury proceedings were flawed because the jurors were not "legally qualified;" (3) he was denied counsel in a prior case that was used to enhance his sentence; (4) he was denied the effective assistance of counsel; (5) his Miranda rights were violated; and (6) he was the victim of prosecutorial misconduct and "significant Judicial error." However, because petitioner failed to raise any of these issues in the trial court or on direct appeal, each is waived or barred by res judicata. State ex rel. Handwork v. Goodrich, 11th Dist. Ashtabula No. 2012-A-0018, 2012-Ohio-2835, ¶14. Moreover, none of these alleged errors affects the jurisdiction of the trial court to convict petitioner. The Supreme Court of Ohio recently held in Billiter v. Banks, 135 Ohio St.3d 426, 2013-Ohio-1719, that alleged sentencing errors relating to, e.g., allied offenses, would not deprive the common pleas court of jurisdiction to convict a defendant. Id. at ¶10. The Court in Billiter further held that the proper remedy for such alleged errors is a direct appeal and that appeal constitutes an adequate remedy at law, which bars habeas-corpus relief. Id. at ¶8. As a result, none of these issues warrants such relief.
(¶5} Petitioner also argues he is entitled to a writ of habeas corpus because he has finished serving his entire sentence in a case in which he was convicted in Summit County in 1979.
(¶6} Petitioner is presently an inmate in the Trumbull Correctional Institution, having previously been convicted in four separate cases in the Summit County Court of Common Pleas. In the first of these cases, he was found guilty of burglary in 1976 and was sentenced to two to 15 years in prison.
(¶7} After being released on parole for his first conviction, petitioner was indicted on multiple felony charges in 1979 in his second criminal case. This is the case that serves as the basis of petitioner's instant habeas petition. In that case, petitioner was found guilty by a jury of aggravated robbery of a grocery store clerk at gunpoint, having a weapon while under a disability, and carrying a concealed weapon. Petitioner was sentenced to respective prison terms for these offenses of seven to 25 years, one to five years, and one to 10 years, each to be served consecutively to the other. Thus, petitioner's maximum prison term under this sentence was 40 years.
(¶8} Petitioner appealed his 1979 conviction to the Ninth Appellate District. His only assignment of error challenged his in-court identification as based on an alleged unnecessarily suggestive pre-trial identification. In State v. Robinson, 9th Dist. Summit No. 9278, 1979 Ohio App. LEXIS 10727 (Sep. 26, 1979) ("Robinson I"), the Ninth District affirmed petitioner's conviction. Thirty-three years later, in 2012, petitioner filed in the trial court a motion to vacate his 1979 sentence. On February 9, 2012, the trial court denied the motion. On March 26, 2012, petitioner filed an appeal of the trial court's ruling to the Ninth District in Case No. 26359. The Ninth District dismissed the appeal as untimely by judgment entry on July 3, 2012. Nearly one year later, on April 1, 2013, petitioner filed a notice of appeal from the Ninth District's judgment and a motion for a delayed appeal in the Supreme Court of Ohio. The Supreme Court denied his motion on May 22, 2013 in Case No. 2013-0520. As a result, on July 10, 2013, petitioner filed the instant action for a writ of habeas corpus.
(¶9} After serving 19 years in prison on the foregoing sentences, petitioner was again released on parole. Within one year after his release, in 1999, he was again tried on criminal charges in his third case in Summit County and was found guilty of carrying a concealed weapon and having a weapon while under a disability. He was sentenced to two terms of 17 months and four years on the respective counts, the two terms to be served concurrently to each other.
(¶10} In 2005, after petitioner was again released on parole, he was convicted for the fourth time in Summit County. In that case, he was found guilty of two felonies, theft and passing bad checks. The trial court sentenced him to 12 months on each ...