[Cite as State ex rel. Lindsay v. Turner, 2020-Ohio-146.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY




STATE OF OHIO, EX. REL,
WENDELL R. LINDSAY,                                         CASE NO. 9-19-45

       PETITIONER,

       v.

NEIL TURNER, WARDEN, ET AL.,                                OPINION

       RESPONDENTS.



                  Appeal from Marion County Common Pleas Court
                            Trial Court No. 2019CV0322

                                       Judgment Affirmed

                            Date of Decision: January 21, 2020



APPEARANCES:

        Wendell R. Lindsay, Appellant

        M. Scott Criss for Appellee
Case No. 9-19-45



WILLAMOWSKI, J.

       {¶1} Petitioner-appellant Wendell R. Lindsay (“Lindsay”) appeals the

judgment of the Marion County Court of Common Pleas for dismissing his petition

for a writ of habeas corpus. For the reasons set forth below, the judgment of the

trial court is affirmed.

                           Facts and Procedural History

       {¶2} In 2010, Lindsay was convicted of rape, sexual battery, and gross sexual

imposition. State v. Lindsay, 5th Dist. Richland No. 18CA87, 2019-Ohio-157, ¶ 5.

Lindsay, at the time he filed this appeal, was an inmate at the North Central

Correctional Complex in Marion County. Doc. 1. On May 13, 2019, he filed a

petition for a writ of habeas corpus (“petition”) with the trial court. Doc. 1. In the

memorandum attached to his petition, Lindsay argued that the trial court lost

jurisdiction over his case after the trial court permitted amendments to his

indictment that changed the identity of the charges against him. Doc. 1. Lindsay

also alleges that the State engaged in prosecutorial misconduct; that the trial court’s

determination violated the prohibition on double jeopardy; and that the trial court

did not have the authority to sentence him. Doc. 1.

       {¶3} On July 15, 2019, the trial court dismissed Lindsay’s petition pursuant

to Civ.R. 12(B)(6). Doc. 7. On August 1, 2019, Lindsay filed a motion to reconsider

his dismissed petition. Doc. 10. On August 6, 2019, the trial court denied Lindsay’s


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motion to reconsider. Doc. 11. The petitioner filed his notice of appeal on August

9, 2019. Doc. 12. On appeal, Lindsay raises the following assignments of error:

                            First Assignment of Error

       The trial court was without any legal authority to sentence for
       Case No. 2010CR0419D, although having original jurisdiction
       pursuant to Article (IV), Section 4(B), of the Ohio Constitution,
       also under Revised Code § 2931.03; after the return of the ‘true
       bill’ from the grand jury, however, the violations of the statute,
       Criminal Rule 7(D), caused the trial court to lose standing over
       the plaintiff, and immediate release should have been the outcome
       of the proceedings, as they were void ab initio.

                           Second Assignment of Error

       The plaintiff’s sentence is void, and his incarceration is illegal, a
       judgment absolutely void, and is a mere nullity; there should not
       be any discretion in determining whether it should be dismissed
       or set aside, and there is no remedy available for a sentence that
       is a question of judicial misconduct; allowing such an action after
       multiple violations of due process of law against the plaintiff, who
       was not informed of his right as to be released.

For the sake of analytical clarity, we will consider both of these assignments of error

in one analysis.

                       First and Second Assignments of Error

       {¶4} On appeal, Lindsay argues that the trial court erred in dismissing his

petition because he presented adequate grounds for relief.




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                                 Legal Standard

      {¶5} “Habeas corpus, like other extraordinary writs, is not available when

there is an adequate remedy at law.” State ex rel. Walker v. Sloan, 147 Ohio St.3d

353, 2016-Ohio-7451, 65 N.E.3d 744, ¶ 7.

      A court may dismiss a habeas action under Civ.R. 12(B)(6) for
      failure to state a claim upon which relief can be granted ‘if, after
      all factual allegations are presumed true and all reasonable
      inferences are made in [the petitioner’s] favor, it appears beyond
      doubt that he could prove no set of facts entitling him to the
      requested extraordinary relief in habeas corpus.’ Keith v. Bobby,
      117 Ohio St.3d 470, 2008-Ohio-1443, 884 N.E.2d 1067, ¶ 10. We
      review a dismissal under Civ.R. 12(B)(6) de novo. State ex rel.
      McKinney v. Schmenk, 152 Ohio St.3d 70, 2017-Ohio-9183, 92
      N.E.3d 871, ¶ 8.

Rock v. Harris, 157 Ohio St.3d 6, 2019-Ohio-1849, 131 N.E.3d 6, ¶ 6. Further,

      when a petition raises claims that are not cognizable in habeas
      corpus, a court need not hold an evidentiary hearing before
      dismissing the petition under Civ.R. 12(B)(6). See Marshall v.
      Lazaroff, 77 Ohio St.3d 443, 444, 674 N.E.2d 1378 (1997). Nor is
      it necessary to first evaluate the merits of the claims.

Handcock v. Shoop, 156 Ohio St.3d 282, 2019-Ohio-718, 125 N.E.3d 872, ¶ 7.

                                 Legal Analysis

      {¶6} In his petition, Lindsay challenged the indictment against him, argued

that he was prejudiced by prosecutorial misconduct, and asserted that his sentence

was invalid. Doc. 1. He also contended that a fraud was perpetrated against the

trial court and that his conviction violated double jeopardy. Doc. 1. However, none

of these claims is cognizable in habeas corpus. Clarke v. McFaul, 8th Dist.


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Case No. 9-19-45


Cuyahoga No. 89436, 2007-Ohio-1592, ¶ 10 (holding that “habeas corpus is not

available to challenge either the validity or sufficiency of an indictment.”); Bobby,

supra, at ¶ 15 (holding that “claims of fraud upon the court, prosecutorial

misconduct, and perjured testimony are not cognizable in habeas corpus.”); Wills v.

Turner, 150 Ohio St.3d 379, 2017-Ohio-6874, 81 N.E.3d 1252, ¶ 6 (holding that

“sentencing errors are not jurisdictional and are not cognizable in habeas corpus.”);

Johnson v. Crutchfield, 140 Ohio St.3d 485, 2014-Ohio-3653, 20 N.E.3d 676, ¶ 6

(holding “double-jeopardy claims are not cognizable in habeas corpus.”). Thus,

Lindsay, in his petition, “fail[ed] to state a claim upon which relief [could] be

granted.” Civ.R. 12(B)(6).

       {¶7} Further, all of the arguments that Lindsay made in his petition identify

alleged errors in the process that preceded his direct appeal. See State v. Lindsay,

5th Dist. Richland No. 2010-CA-0134, 2011-Ohio-4747. Lindsay could have raised

these claims on direct appeal. Thus, in this case, direct appeal was an adequate

alternative remedy in the ordinary course of law. We also note that Lindsay raised

these exact same arguments in a previous petition for postconviction relief that he

filed with the trial court on June 18, 2018. Lindsay, supra, 2019-Ohio-157, ¶ 16.

Since these claims were available to Lindsay during his direct appeal and have been

previously raised in his prior petition for postconviction relief, they are barred by

res judicata. State ex rel. Gibson v. Sloan, 147 Ohio St.3d 240, 2016-Ohio-3422,

63 N.E.3d 1172, ¶ 9 (holding that “[r]es judicata precludes a petitioner from using

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habeas corpus to gain successive appellate review of previously litigated issues.”);

State ex rel. Rash v. Jackson, 102 Ohio St.3d 145, 2004-Ohio-2053, 807 N.E.2d

344, ¶ 12. For these reasons, we conclude that the trial court did not err in dismissing

Lindsay’s petition. Thus, the appellant’s first and second assignments of error are

overruled.

                                     Conclusion

       {¶8} Having found no error prejudicial to the petitioner in the particulars

assigned and argued, the judgment of the Marion County Court of Common Pleas

is affirmed.

                                                                  Judgment Affirmed

ZIMMERMAN, P.J. and PRESTON, J., concur.

/hls




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