[Cite as Palmer v. May, 2019-Ohio-4939.]


                                      COURT OF APPEALS
                                   RICHLAND COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT


DAVID D. PALMER,                           :       JUDGES:
                                           :       Hon. William B. Hoffman, P.J.
        Petitioner                         :       Hon. Patricia A. Delaney, J.
                                           :       Hon. Craig R. Baldwin, J.
-vs-                                       :
                                           :
HAROLD MAY, WARDEN,                        :       Case No. 2019 CA 0100
                                           :
        Respondent                         :       OPINION



CHARACTER OF PROCEEDING:                           Writ of Habeas Corpus




JUDGMENT:                                          Dismissed



DATE OF JUDGMENT:                                  December 2, 2019



APPEARANCES:

For Petitioner                                     For Respondent

DAVID D. PALMER, Pro Se                            DAVE YOST
#329-601                                           Attorney General
Richland Correctional Institution
P.O. Box 8107                                      By: STEPHANIE L. WATSON
Mansfield, Ohio 44901                              Principal Assistant Attorney General
                                                   Corrections Litigation Section
                                                   150 East Gay Street, 16th Floor
                                                   Columbus, Ohio 43215-6001
Richland County, Case No. 2019 CA 0100                                                 2


Baldwin, J.

       {¶1}   On October 30, 2019, David Palmer filed a petition for writ of habeas corpus

requesting an immediate discharge from prison, expungement of all his convictions, and

a prompt evidentiary hearing on all of the claims he raises in his habeas corpus petition.

The Ohio Attorney General, on behalf of Respondent, Harold May, Warden, moved to

dismiss Mr. Palmer’s petition under Civ.R. 12(B)(6).

       {¶2}   The purpose of a Civ.R. 12(B)(6) motion is to test the sufficiency of the

complaint. State ex rel. Boggs v. Springfield Loc. School Dist. Bd. of Edn., 72 Ohio St.3d

94, 95, 647 N.E.2d 788 (1995). In order for a case to be dismissed for failure to state a

claim, it must appear beyond doubt that, even assuming all factual allegations in the

complaint are true, the nonmoving party can prove no set of facts that would entitle that

party to the relief requested. Keith v. Bobby, 117 Ohio St.3d 470, 2008-Ohio-1443, 884

N.E.2d 1067, ¶10. If a petition does not satisfy the requirements for a properly filed petition

for writ of habeas corpus or does not present a facially viable claim, it may be dismissed

on motion by the respondent or sua sponte by the court. Flora v. State, 7th Dist. Belmont

No. 04 BE 51, 2005-Ohio-2383, ¶5.

       {¶3}   “To be entitled to a writ of habeas corpus, a petitioner must show that he is

being unlawfully restrained of his liberty and that he is entitled to immediate release from

prison or confinement.” State ex rel. Whitt v. Harris, ____ Ohio St.3d ____, 2019-Ohio-

4113, ¶6, citing R.C. 2725.01; State ex rel. Cannon v. Mohr, 155 Ohio St.3d 213, 2018-

Ohio-4184, 120 N.E.3d 776, ¶10. Habeas corpus is not available when an adequate

remedy at law exists. Billiter v. Banks, 135 Ohio St.3d 426, 2013-Ohio-1719, 988 N.E.2d

556, ¶8.
Richland County, Case No. 2019 CA 0100                                             3


       {¶4}    For the following reasons, we grant the attorney general’s Motion to

Dismiss. First, Mr. Palmer previously filed multiple habeas corpus petitions and “[r]es

judicata precludes a petitioner from using habeas corpus to gain successive appellate

review of previously litigated issues.” Lopez v. Warden, Madison Corr. Inst., 154 Ohio

St.3d 192, 2018-Ohio-4061, 112 N.E.3d 905, ¶6, quoting State ex rel. Gibson v. Sloan,

147 Ohio St.3d 240, 2016-Ohio-3422, 63 N.E.3d 1172, ¶9. In Palmer v. Wilson, 5th Dist.

Richland No. 2005-CA-2, 2005-Ohio-2346, we reviewed the various habeas corpus

petitions previously filed by Mr. Palmer. Mr. Palmer filed one petition in the Pickaway

County Common Pleas Court and argued that he was entitled to immediate release from

confinement because the Montgomery County Court of Common Pleas violated his

speedy trial rights. Id. at ¶7. The Pickaway County Common Pleas Court dismissed Mr.

Palmer’s petition. Id. Mr. Palmer appealed and the court of appeals affirmed the trial

court’s decision. Id.

       {¶5}    Thereafter, in 2002, Mr. Palmer filed another writ of habeas corpus in the

Richland County Court of Common Pleas again raising the speedy trial issue. Id. at ¶8.

The court dismissed Mr. Palmer’s petition and we affirmed the trial court’s dismissal. Id.,

see Palmer v. Rose, 5th Dist. Richland No. 02-CA-51, 2003-Ohio-1195. In 2005, Mr.

Palmer filed a third petition for writ of habeas corpus on the basis that he was never

arraigned on his criminal charges in the Montgomery County Common Pleas Court.

Palmer v. Wilson, 2005-Ohio-2346, at ¶9. We affirmed the trial court’s dismissal of the

petition. Id. at ¶15.

       {¶6}    As the Ohio Supreme Court explained in Lopez v. Warden, Madison Corr.

Inst., 2018-Ohio-4061, at ¶6, “[u]nder these circumstances, we may take judicial notice of
Richland County, Case No. 2019 CA 0100                                                 4


our own docket.” In making this statement, the Court referenced its decision in State ex

rel. Neff v. Corrigan, 75 Ohio St.3d 12, 15-16, 75 Ohio St.3d 12 (1996), that held:


       Kramer v. Time Warner, Inc. (C.A.2, 1991), 937 F.2d 767, 773, allow[s]

       courts to take judicial notice of appropriate matters in considering a motion

       to dismiss for failure to state a claim under the similarly worded

       Fed.R.Civ.P. 12(b)(6) without having to convert it to a motion for summary

       judgment; see, also, First Michigan Bank & Trust Co. v. P. & S. Bldg. (Feb.

       16, 1989), Meigs App. No. 413, unreported, at 6, 1989 WL 11915

       (“Conceivably a court may take judicial notice of adjudicative facts under

       Evid.R. 201 in determining a Civ.R. 12(B)(6) motion * * *.”).


Id. at 16.
       {¶7}   Here, we take judicial notice of the 2002 and 2005 petitions for writs of

habeas corpus previously filed by Mr. Palmer in the Fifth District Court of Appeals. In his

present petition, Mr. Palmer adds additional grounds for relief, including that he is

unlawfully imprisoned because: (1) His no contest plea to two counts of rape of a minor

were obtained by “intentional state imposed strong-armed coercive brutal living jail

conditions for 427 days; (2) the trial court unlawfully obtained his no contest plea by

employing “trickle” (sic) and failure to inform him during the plea colloquy that he may

receive consecutive sentences; (3) the trial court employed “tricker” (sic) by not informing

him that it would “arbitrarily impose additional sentence sanction conditions to ‘enroll in

the Polaris Program’ 14 years after imposing the initial sentence”; (4) trial court and

defense counsel strong armed him to waive his speedy trial rights by a false promise for

needed medical treatment and “due to brutal jail living conditions and false hopes to evade
Richland County, Case No. 2019 CA 0100                                                5


death”; and (5) “[t]he falsifications and criminal alterations of the indictments violated

criminal statutory laws and controlling authorities of law.” See Petition for Issuance of Writ

of Habeas Corpus, p. 4.

       {¶8}   Mr. Palmer could have raised these arguments in his prior habeas corpus

petitions, but failed to do so. In State ex rel. Childs v. Lazaroff, 90 Ohio St.3d 519, 739

N.E.2d 802 (2001), the Ohio Supreme Court held that because petitioner filed two habeas

actions in which he could have raised the present claim, res judicata barred him from filing

successive habeas corpus petitions. Id. at 520. Likewise, Mr. Palmer has filed at least

three previous habeas corpus petitions wherein he could have raised the issues that he

raises in his current petition. Therefore, res judicata bars his pending petition for writ of

habeas corpus.

       {¶9}   Further, several of the issues Mr. Palmer raises in his current petition for

habeas corpus are issues that he previously raised (i.e. arraignment and speedy trial

issues). “Res judicata [also] precludes a petitioner from using habeas corpus to gain

successive appellate review of previously litigated issues.” State ex rel. Gibson v. Sloan,

147 Ohio St.3d 240, 2016-Ohio-3422, 63 N.E.3d 1172, ¶9.

       {¶10} Second, Mr. Palmer’s habeas corpus petition also fails because the various

grounds he asserts in support of his petition are not cognizable in habeas corpus. See

Shroyer v. Banks, 123 Ohio St.3d 88, 914 N.E.2d 368, 2009-Ohio-4080, ¶1 (validity of

charging instrument and ineffective assistance of counsel); State v. Holdcroft, 137 Ohio

St.3d 526, 1 N.E.3d 382, 2013-Ohio-5014, ¶18 (sentencing issues or errors); Keith v.

Bobby, 117 Ohio St.3d 470, 884 N.E.2d 1067, 2008-Ohio-1443, ¶15 (fraud on the court);

Waites v. Gansheimer, 110 Ohio St.3d 250, 2006-Ohio-4358, 852 N.E.2d 1204, ¶6
Richland County, Case No. 2019 CA 0100                                              6


(conditions of confinement/health issues); State ex rel. Rackley v. Sloan, 150 Ohio St.3d

11, 78 N.E.3d 819, 2016-Ohio-3416, ¶8, citing Pollock v. Morris, 35 Ohio St.3d 117, 518

N.E.2d 1205 (1988) (validity of guilty plea); and State ex rel. Rackley v. Sloan, 2016-Ohio-

3416, at ¶9, citing Travis v. Bagley, 92 Ohio St.3d 322, 323, 2001-Ohio-198, 750 N.E.2d

166 (speedy trial). Further, Mr. Palmer already asserted these grounds or should have

done so in alternative legal remedies such as his direct appeal or post-conviction relief.

       {¶11} Also, with regard to Mr. Palmer’s claims for a speedy trial violation and that

he was never properly arraigned, this Court previously concluded he waived these issues

due to his plea and that these are not issues properly addressed by way of habeas corpus

relief. Palmer v. Wilson, 2005-Ohio-2346, ¶¶8,13. Mr. Palmer’s speedy trial argument was

also addressed in his direct appeal. See Palmer v. Rose, 2003-Ohio-1195, ¶26, citing

State v. Palmer, 2nd Dist. Montgomery No. 16017, 1997 WL 452010 (July 25, 1997).

       {¶12} Third, the fact that Mr. Palmer’s maximum sentence has not expired serves

as another basis to deny his petition for habeas corpus. Habeas corpus is generally

available only when the petitioner’s maximum sentence has expired and he is being held

unlawfully. Heddleston v. Mack, 84 Ohio St.3d 213, 214, 702 N.E.2d 1198 (1998), citing

Morgan v. Ohio Adult Parole Auth., 68 Ohio St.3d 344, 346, 626 N.E.2d 939 (1994). Mr.

Palmer attached the sentencing order to his petition that indicates the trial court

sentenced him to a maximum sentence of 50 years. See Nunc Pro Tunc Termination

Entry, Mar. 1, 2010. Expiration of his maximum sentence is March 29, 2045.1




1See Ohio Department of Rehabilitation and Correction website:
https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/A329601
Richland County, Case No. 2019 CA 0100                                              7


      {¶13} For the reasons set forth above, we grant the attorney general’s Motion to

Dismiss under Civ.R. 12(B)(6).

      {¶14} The clerk of courts is hereby directed to serve upon all parties not in default

notice of this judgment and its date of entry upon the journal. See Civ.R. 58(B).

      {¶15} MOTION GRANTED.

      {¶16} CAUSE DISMISSED.

      {¶17} COSTS TO PETITIONER.

      {¶18} IT IS SO ORDERED.

By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.
