[Cite as State ex rel. Thomas v. Sheldon, 2016-Ohio-7642.]




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




STATE OF OHIO, EX REL.,                                      CASE NO. 1-16-26
LEWIS THOMAS, III,

       PETITIONER-APPELLANT,

      v.
                                                             OPINION
EDWARD T. SHELDON,

       RESPONDENT-APPELLEE.



                   Appeal from Allen County Common Pleas Court

                               Trial Court No. CV2015 0424

                                      Judgment Affirmed

                           Date of Decision: November 7, 2016



APPEARANCES:

        Lewis Thomas, III, Appellant

        Paul Kerridge for Appellee
Case No 1-16-26


WILLAMOWSKI, J.

       {¶1} Although originally placed on our accelerated calendar, we have elected

pursuant to Loc.R. 12(5) to issue a full opinion in lieu of a summary judgment entry.

Petitioner-Appellant Lewis Thomas III (“Thomas”) filed a petition for a writ of

habeas corpus with the Court of Common Pleas of Allen County and now appeals

the decision of the trial court to grant the state’s motion for summary judgment. For

the reasons set forth below, the judgment of the lower court is affirmed.

       {¶2} In 1988, a Hamilton County Trial Court found Thomas guilty of

aggravated murder, aggravated robbery, and felonious assault.         Doc. 1.    On

September 2, 1994, Thomas submitted a petition for a writ of habeas corpus,

attacking the jurisdiction of the trial court on the grounds that his indictment was

invalid. Doc. 8. The Fourth District Court of Appeals concluded that the trial court

did have proper jurisdiction and dismissed his petition on the merits. Id. On appeal,

the Ohio Supreme Court affirmed this decision. Thomas v. Collins, 74 Ohio St.3d

413, 659 N.E.2d 790 (1996).

       {¶3} On July 13, 2015, Thomas submitted the habeas corpus petition now

before this court. Doc. 1. In this petition, Thomas again asserts that his indictment

was invalid, depriving the trial court of jurisdiction over his case in 1988. Id. In

response, the state submitted a motion for summary judgment. The trial court

granted this motion for summary judgment, finding that res judicata precluded

review of this petition and that Thomas “had an adequate remedy in the ordinary

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Case No 1-16-26


course of law.” State of Ohio, ex rel. Thomas v. Sheldon, Allen C.P. No. CV2015

0424 (May 25, 2016). Thomas raises one assignment of error on appeal.

       Appellant was denied Due Process, the Court erred when it failed
       in its judgment to establish the Merit of Writ in which the
       appellant claimed lack of jurisdiction over the subject matter.
       Usurped without legal authority by [the trial court], and granted
       summary judgment motion on grounds appellant claimed his
       indictment was invalid.

       {¶4} “Generally, when the petitioner does not attack the jurisdiction of the

court, habeas corpus will be denied.” Luna v. Russell, 70 Ohio St.3d 561, 561, 639

N.E.2d 1168 (1994), citing Stahl v. Shoemaker, 50 Ohio St.2d 351, 364 N.E.2d 286

(1977) and R.C. 2725.05. “The manner by which an accused is charged with a crime

is procedural rather than jurisdictional.” Orr v. Mack, 83 Ohio St.3d 429, 430, 700

N.E.2d 590, 591 (1998), citing State ex rel. Beaucamp v. Lazaroff, 77 Ohio St.3d

237, 673 N.E.2d 1273 (1997). While “habeas corpus relief may be granted for

nonjurisdictional claims,” this relief is available only when “the petitioner has no

adequate remedy at law.” Thomas at 414, citing State ex rel. Pirman v. Money, 69

Ohio St.3d 591, 635 N.E.2d 26 (1994). For issues with an indictment, direct appeal

is an adequate remedy at law. Id. A claim “[attacking] the validity***of [an]

indictment***is not cognizable in habeas corpus.” Shie v. Leonard, 84 Ohio St.3d

160, 161, 702 N.E.2d 419 (1998).

       {¶5} Further, the doctrine of res judicata “hold[s] that a valid, final judgment

rendered upon the merits bars all subsequent actions based upon any claim arising


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Case No 1-16-26


out of the transaction or occurrence that was the subject matter of the previous

action.” Grava v. Parkman Twp., 73 Ohio St.3d 379, 382, 653 N.E.2d 226 (1995).

“Res judicata applies to successive habeas corpus petitions because habeas corpus

petitioners can appeal adverse judgments on habeas corpus cases.” State ex rel.

Rash v. Jackson, 102 Ohio St.3d 145, 147, 2004-Ohio-2053, 807 N.E.2d 344, ¶ 10,

citing Hudlin v. Alexander, 63 Ohio St.3d 153, 586 N.E.2d 86 (1992). Successive

habeas corpus petitions are precluded when the petitioner “could have raised the

same claims in [a] previous petition.” State ex rel. Johnson v. Ohio Dept. of Rehab.

& Corr., 95 Ohio St.3d 70, 71, 765 N.E.2d 356 (2002).

       {¶6} In his sole assignment of error, Thomas challenges the validity of the

indictment returned by the grand jury against him in 1988. This claim concerns a

procedural issue that does not affect the jurisdiction of the trial court. Thomas was

bound by the judgment of the trial court after his conviction, which he then appealed

shortly thereafter in 1988. Doc. 1. See State ex rel. Beaucamp v. Lazaroff, 77 Ohio

St.3d 237, 673 N.E.2d 1273 (1997). Since the validity of an indictment can be

challenged on appeal, Thomas had an adequate remedy at law available to him.

Thus, Thomas cannot use habeas corpus to challenge the validity of his indictment,

and his claim is not cognizable in habeas corpus.

       {¶7} Further, the instant case involves the third habeas corpus petition that

Thomas has filed since his incarceration. Each successive petition has raised

matters that could have been asserted previously. On September 2, 1994, Thomas

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Case No 1-16-26


filed his first habeas corpus petition, which challenged the “relationship of the

indictment to the evidence.” Thomas v. Collins, 74 Ohio St.3d 413, 414, 659 N.E.2d

790 (1996). On appeal, the Supreme Court of Ohio held that Thomas’s right to

appeal issues related to his indictment was an adequate remedy at law, making

habeas corpus relief unavailable. Id. In the instant petition, Thomas raises a claim

that was argued in his previous habeas corpus petition. In its ruling, the Ohio

Supreme Court settled the issues relating to his indictment. Id. Since res judicata

bars claims that could have been raised or claims that were heard previously, this

doctrine bars consideration of his present claim.

       {¶8} Having found no error prejudicial to the appellant, the judgment of the

Court of Common Pleas of Allen County is affirmed.

                                                               Judgment Affirmed

SHAW, P.J. and ROGERS, J., concur.

/hls




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