[Cite as State ex rel. Miller v. Bradshaw, 2016-Ohio-5033.]


                                             COURT OF APPEALS
                                          RICHLAND COUNTY, OHIO
                                         FIFTH APPELLATE DISTRICT


STATE OF OHIO, EX REL.,                             :         JUDGES:
JERRY MILLER                                        :         Hon. Sheila G. Farmer, P.J.
                                                    :         Hon. William B. Hoffman, J.
        Petitioner                                  :         Hon. John W. Wise, J.
                                                    :
-vs-                                                :
                                                    :
MARGARET A. BRADSHAW,                               :         Case No. 15CA110
                                                    :
        Respondent                                  :         OPINION




CHARACTER OF PROCEEDING:                                      Writ of Habeas Corpus




JUDGMENT:                                                     Dismissed



DATE OF JUDGMENT:                                             July 18, 2016



APPEARANCES:

For Petitioner                                                For Respondent

JERRY MILLER, Pros Se                                         MICHAEL DeWINE
Inmate No. a487-391                                           Attorney General of Ohio
Richland Correctinal Institution                              By: JERRI L. FOSNAUGHT
P. O. Box 8107                                                Assistant Attorney General
Mansfield, OH 44901                                           150 East Gay Street, 16th Floor
                                                              Columbus, OH 43215
Richland County, Case No. 15CA110                                                          2

Farmer, J.

       {¶1}   Jerry Miller has filed a Petition for Writ of Habeas Corpus alleging he is

entitled to immediate release from prison because his sentences have expired.

Respondent has filed a Motion to Dismiss for failure to state a claim upon which relief

may be granted. Both parties have also filed other dispositive motions which are denied

based upon our resolution in this case.

       {¶2}   Petitioner argues we should deny the motion to dismiss because the motion

was untimely filed. Even if we disregard the motion filed by Respondent, this Court can

sua sponte dismiss for failure to state a claim upon which relief may be granted. “[S]ua

sponte dismissal of a complaint for failure to state a claim upon which relief can be granted

is appropriate if the complaint is frivolous or the claimant obviously cannot prevail on the

facts alleged in the complaint. State ex rel. Thompson v. Spon, 83 Ohio St.3d 551, 553,

1998–Ohio–298; State ex rel. Bruggeman v. Ingraham, 87 Ohio St.3d 230, 231, 1999–

Ohio–27.

       {¶3}   This is Petitioner’s third habeas corpus petition filed since he was

incarcerated in 2005. In the first two petitions, arguments similar to those in the instant

petition were raised asserting Petitioner’s sentences had expired for various reasons.

       {¶4}   The Supreme Court has held, “When a petitioner has filed a previous

habeas corpus action, the doctrine of res judicata prevents the petitioner from raising an

issue in a successive habeas petition that the petitioner raised in the previous habeas

action. Hudlin v. Alexander, 63 Ohio St.3d 153, 586 N.E.2d 86 (1992).” Jefferson v.

Bunting, 2016-Ohio-614, ¶ 5 (Ohio).
Richland County, Case No. 15CA110                                                        3


       {¶5}   Petitioner has raised the same or similar claims in the two prior petitions.

Petitioner could have raised in the prior petition(s), and did at least to some degree, the

same claims raised in the instant petition. Therefore, the claims raised in the petition

before us are barred by the doctrine of res judicata. For this reason, the petition is

dismissed for failure to state a claim upon which relief may be granted.




By Farmer, P.J.

Hoffman, J. and

Wise, J. concur.




SGF/as 622
