[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Johnson v. McClelland, Slip Opinion No. 2014-Ohio-4533.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2014-OHIO-4533
 THE STATE EX REL. JOHNSON, APPELLANT, v. MCCLELLAND, JUDGE, ET AL.,
                                      APPELLEES.
   [Until this opinion appears in the Ohio Official Reports advance sheets,
              it may be cited as State ex rel. Johnson v. McClelland,
                         Slip Opinion No. 2014-Ohio-4533.]
Mandamus—Procedendo—Petition for resentencing after death sentence
        “vacated”—Res judicata precludes issuance of writ when identical
        argument unsuccessful in previous actions filed by relator.
   (No. 2013-2017—Submitted October 7, 2014—Decided October 15, 2014.)
      APPEAL from the Court of Appeals for Cuyahoga County, No. 100427,
                                   2013-Ohio-5442.
                               _____________________
        Per Curiam.
        {¶ 1} We affirm the Cuyahoga County Court of Appeals’ judgment
dismissing a petition for writs of mandamus and/or procedendo to compel a trial
judge to resentence relator-appellant, John A. Johnson.              Johnson had been
convicted of aggravated murder and sentenced to death in 1976. The sentence
                             SUPREME COURT OF OHIO




was affirmed by the court of appeals, but we reversed the death sentence and
modified Johnson’s sentence to life in prison based on U.S. Supreme Court
decisions.
       {¶ 2} This is the latest in a series of petitions Johnson has filed, asserting
that he should have been returned to the common pleas court for resentencing
after his death sentence was “vacated.” The court of appeals dismissed. Because
Johnson has made or could have made the same arguments on at least two
occasions before, the case is res judicata, and we affirm.
                                       Facts
       {¶ 3} In 1976, the Cuyahoga County Common Pleas Court convicted
Johnson of aggravated murder with specifications, kidnapping, and rape. The
common pleas court sentenced Johnson to death for the aggravated murder with
specifications and further sentenced him to prison for his kidnapping and rape
convictions. On appeal, the court of appeals affirmed. State v. Johnson, 8th Dist.
Cuyahoga No. 36618, 1978 WL 217677 (Jan. 30, 1978). In 1978, we reversed
Johnson’s death sentence and modified the sentence to life imprisonment based
on Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Bell
v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978).
       {¶ 4} In 1998, Johnson filed a petition in the Court of Appeals for
Richland County for a writ of habeas corpus to compel his release from prison
because he had never been returned to the common pleas court for resentencing
under Crim.R. 32 and 43 after his death sentence had been modified. The court of
appeals dismissed Johnson’s petition, and on appeal, we affirmed. Johnson v.
Mitchell, 85 Ohio St.3d 123, 707 N.E.2d 471 (1999).
       {¶ 5} In October 2007, Johnson filed a second petition for a writ of
habeas corpus in the Court of Appeals for Richland County. Johnson claimed that
he was entitled to the writ because both his 1976 sentencing entry and this court’s
1978 entry modifying his death sentence to life imprisonment were void for



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                                January Term, 2014




several reasons, including that the sentencing entry did not comply with Crim.R.
32. The respondent in that case, Mansfield Correctional Institution Warden Stuart
Hudson, filed a motion to dismiss. The court of appeals granted the warden’s
motion and dismissed the petition. State ex rel. Johnson v. Hudson, 5th Dist.
Richland No. 07-CA-100, 2008-Ohio-34.             We affirmed on the basis of res
judicata. 118 Ohio St.3d 308, 2008-Ohio-2451, 888 N.E.2d 1090, ¶ 5, citing
Everett v. Eberlin, 114 Ohio St.3d 199, 2007-Ohio-3832, 870 N.E.2d 1190, ¶ 8
(“Having filed a previous petition, Johnson is barred by res judicata from filing a
successive habeas corpus petition”).
       {¶ 6} In 2013, Johnson filed this complaint for a writ of mandamus
and/or procedendo asking the Eighth District to direct appellees, Judge Robert
McClelland and the Cuyahoga County Court of Common Pleas, to resentence him
in his original criminal case. This is the same relief he sought in his two previous
habeas actions. The court of appeals dismissed the complaint on the respondents’
motion. Johnson appealed.
                                       Analysis
       {¶ 7} Res judicata precludes a writ. In two separate previous habeas
actions, Johnson unsuccessfully challenged the validity of his sentence. The court
of appeals properly dismissed this third attempt to compel resentencing.
       {¶ 8} Moreover, as we observed in Johnson v. Mitchell, 85 Ohio St.3d at
124, 707 N.E.2d 471, R.C. 2929.06, on which Johnson largely bases his
arguments, did not become effective until 1981 and applies only when a death
sentence is vacated. 139 Ohio Laws, Part I, 1, 18-19. Because we modified, but
did not vacate his sentence, three years before the statute became effective,
Johnson is not entitled to a resentencing hearing. 85 Ohio St.3d at 124.
       {¶ 9} In short, Johnson has made all these arguments in previous actions
and has lost in every case. The legal issues are res judicata, and the court of
appeals was justified in dismissing his petition.



                                          3
                            SUPREME COURT OF OHIO




                                                          Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                           _____________________
       John A. Johnson, pro se.
       Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and James
E. Moss, Assistant Prosecuting Attorney, for appellees.
                         _________________________




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