[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Gibson v. Sloan, Slip Opinion No. 2016-Ohio-3422.]




                                           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. 2016-OHIO-3422
   THE STATE EX REL. GIBSON, APPELLANT, v. SLOAN, WARDEN, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
          may be cited as State ex rel. Gibson v. Sloan, Slip Opinion No.
                                     2016-Ohio-3422.]
Habeas corpus—Claims not cognizable in habeas corpus—Court of appeals’
        dismissal of petition affirmed.
    (No. 2015-1381—Submitted February 23, 2016—Decided June 16, 2016.)
              APPEAL from the Court of Appeals for Ashtabula County,
                           No. 2014-A-0073, 2015-Ohio-3088.
                                    ________________
        Per Curiam.
        {¶ 1} Appellant, Reginald Gibson, appeals from the judgment of the
Eleventh District Court of Appeals dismissing his petition for a writ of habeas
corpus. Because he has, and has used, adequate remedies at law to raise his habeas
corpus claims, we affirm.
                                   SUPREME COURT OF OHIO




                                     Relevant Background
         {¶ 2} Gibson is currently serving an eight-year prison sentence at the Allen
Oakwood Correctional Institution,1 having been convicted in Stark County of
felonious assault and abduction.              See State v. Gibson, 5th Dist. Stark No.
2013CA00175, 2014-Ohio-1169, ¶ 1, 14.
         {¶ 3} Gibson filed a petition for a writ of habeas corpus in the Eleventh
District Court of Appeals on December 2, 2014. He claimed that the trial court
lacked jurisdiction to convict and sentence him because of the following alleged
errors: excessive pretrial bond, denial of his right to an impartial jury, improper
waiver of counsel, ineffective assistance of trial counsel, insufficient evidence,
prosecutorial misconduct, ineffective assistance of appellate counsel, and erroneous
evidentiary rulings.
         {¶ 4} The court of appeals dismissed Gibson’s habeas corpus petition,
found that his habeas claims were “substantially the same” as the claims that he had
asserted in a second postconviction petition2 and therefore, that he had adequate
remedies at law. 2015-Ohio-3088, ¶ 5, citing State v. Gibson, 5th Dist. Stark No.
2015CA00039, 2015-Ohio-2055, ¶ 10-42.
         {¶ 5} Gibson appealed, and on December 16, 2015, filed a motion for an
evidentiary hearing under S.Ct.Prac.R. 4.01, which appellee, Brigham Sloan,
opposes. In seven propositions of law, Gibson reasserts his habeas corpus claims
and also argues that the trial court abused its discretion when it dismissed his first

1
  When he filed his petition for a writ of habeas corpus, Gibson was incarcerated at the Lake Erie
Correctional Institution in Ashtabula County. See 2015-Ohio-3088, ¶ 1. He was transferred to the
Allen Oakwood Correctional Institution, in Allen County, Ohio, after his notice of appeal was filed;
thus, while he has since been relocated, the Eleventh District had original jurisdiction over Gibson’s
habeas corpus petition when it was filed and throughout the pendency of that original action. R.C.
2725.03.
2
  Gibson has previously filed at least two postconviction petitions. The trial court denied his first
postconviction petition on res judicata grounds on May 23, 2014, and Gibson did not appeal that
decision. Gibson, 2015-Ohio-2055, ¶ 6. The trial court dismissed Gibson’s second postconviction
petition because he failed to demonstrate that the statutory prerequisites for second or successive
postconviction petitions were satisfied. Id. at ¶ 8.




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                                 January Term, 2016




postconviction petition without the “findings of fact and conclusions of law”
required by R.C. 2953.21(C) and that the trial judge was biased against him in
violation of his state and federal constitutional rights.
                                       Analysis
        {¶ 6} We affirm the court of appeals’ judgment dismissing Gibson’s habeas
corpus petition. The claims for which he seeks relief are not cognizable in habeas
corpus, and he had, and has used, adequate remedies at law to assert those claims.
        {¶ 7} Habeas corpus “is not generally available when there is an adequate
remedy at law.” Jackson v. Johnson, 135 Ohio St.3d 364, 2013-Ohio-999, 986
N.E.2d 989, ¶ 3. The availability of an adequate remedy at law, even if that remedy
was not sought or was unsuccessful, precludes a writ of habeas corpus. State ex
rel. O’Neal v. Bunting, 140 Ohio St.3d 339, 2014-Ohio-4037, 18 N.E.3d 430, ¶ 15.
        {¶ 8} Habeas corpus will not lie to challenge the propriety of jury-verdict
forms. Smith v. Smith, 123 Ohio St.3d 145, 2009-Ohio-4691, 914 N.E.2d 1036,
¶ 1. Nor will habeas corpus lie to challenge erroneous jury instructions, Smith v.
Mitchell, 80 Ohio St.3d 624, 624, 687 N.E.2d 749 (1998); prosecutorial
misconduct, Keith v. Bobby, 117 Ohio St.3d 470, 2008-Ohio-1443, 884 N.E.2d
1067, ¶ 15; the sufficiency of the evidence, State ex rel. Tarr v. Williams, 112 Ohio
St.3d 51, 2006-Ohio-6368, 857 N.E.2d 1225, ¶ 4; ineffective assistance of counsel
or the alleged denial of the right to counsel, Bozsik v. Hudson, 110 Ohio St.3d 245,
2006-Ohio-4356, 852 N.E.2d 1200, ¶ 7; or the imposition of excessive pretrial bail
after the petitioner has been convicted, Smith v. Leis, 106 Ohio St.3d 309, 2005-
Ohio-5125, 835 N.E.2d 5, ¶ 13.
        {¶ 9} Gibson also had an adequate remedy at law, by way of direct appeal
and postconviction relief, to assert his claim that he was denied an impartial jury.
And as the court of appeals correctly noted, he has already availed himself of a
petition for postconviction relief to assert that claim. 2015-Ohio-3088, at ¶ 5. Res
judicata precludes a petitioner from using habeas corpus to gain successive




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                              SUPREME COURT OF OHIO




appellate review of previously litigated issues. State ex rel. Harsh v. Sheets, 132
Ohio St.3d 198, 2012-Ohio-2368, 970 N.E.2d 926, ¶ 1.
       {¶ 10} Finally, because he did not raise them in his habeas corpus petition
in the court of appeals, Gibson has waived his claim that the trial court violated
R.C. 2953.21(C) when it failed to journalize findings of fact and conclusions of law
in its entry dismissing his postconviction petition and his claim that the trial court
was biased against him. See North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-
6515, 858 N.E.2d 386, ¶ 6. Moreover, even if he had raised those claims in his
habeas corpus petition, neither claim is cognizable in habeas corpus. See State ex
rel. Konoff v. Moon, 79 Ohio St.3d 211, 212, 680 N.E.2d 989 (1997) (a writ of
mandamus “will lie to compel a trial court to issue findings of fact and conclusions
of law when it dismisses a petition for postconviction relief”); Ellis v. McMackin,
65 Ohio St.3d 161, 162, 602 N.E.2d 611 (1992) (habeas corpus not available to
challenge the neutrality of a trial-court judge).
       {¶ 11} The court of appeals did not err by dismissing Gibson’s habeas
petition, and we affirm the court’s judgment. We also deny Gibson’s motion for
an evidentiary hearing as moot.
                                                                  Judgment affirmed
                                                                 and motion denied.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                                _________________
       Reginald Gibson, pro se.
       Michael DeWine, Attorney General, and Jonathan R. Khouri, Assistant
Attorney General, for appellee.
                                _________________




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