[Cite as State ex rel. Davis v. Sloan, 2018-Ohio-4374.]


                                      IN THE COURT OF APPEALS

                                  ELEVENTH APPELLATE DISTRICT

                                      ASHTABULA COUNTY, OHIO


 STATE OF OHIO ex rel. DWAYNE DAVIS, :                        PER CURIAM OPINION

                   Petitioner,                            :
                                                              CASE NO. 2018-A-0063
          - vs -                                          :

 WARDEN BRIGHAM SLOAN,                                    :

                   Respondent.                            :


 Original Action for Writ of Habeas Corpus.

 Judgment: Petition dismissed.


 Dwayne Davis, pro se, PID: A644-653, Lake Erie Correctional Institution, P.O. Box 8000,
 501 Thompson Road, Conneaut, OH 44030 (Petitioner).

 Mike DeWine, Ohio Attorney General, and Maura O’Neill Jaite, Senior Assistant Attorney
 General, Criminal Justice Section, 150 East Gay Street, 16th Floor, Columbus, OH
 43215 (For Respondent).



PER CURIAM.

          {¶1}     Petitioner, Dwayne Davis, seeks a writ of habeas corpus against

respondent, Brigham Sloan, Warden of the Lake Erie Correctional Institution, for his

immediate release from imprisonment. The petition is dismissed for the reasons that

follow.

          {¶2}     In September 2013, petitioner pled guilty to Burglary, a second-degree

felony in violation of R.C. 2911.12(A)(1); Burglary, a fourth-degree felony in violation of

R.C. 2911.12(B); and Intimidation of a Crime Victim or Witness, a third-degree felony in
violation of R.C. 2921.04(B). On October 3, 2013, the trial court imposed an aggregate

prison term of ten years, which was affirmed on appeal in State v. Davis, 8th Dist.

Cuyahoga No. 102639, 2015-Ohio-4501. The trial court subsequently denied a petition

for postconviction relief, which was also affirmed on appeal in State v. Davis, 8th Dist.

Cuyahoga No. 106012, 2018-Ohio-751.

       {¶3}   On April 19, 2018, petitioner filed a petition for a writ of habeas corpus,

alleging he is being unlawfully restrained at the Lake Erie Correctional Institution, which

this court dismissed for failure to state a claim upon which habeas relief could be granted.

State ex rel. Davis v. Sloan, 11th Dist. Ashtabula No. 2018-A-0039, 2018-Ohio-2890.

       {¶4}   On August 1, 2018, petitioner filed this second petition for writ of habeas

corpus. The matter is now before us on petitioner’s motion for summary judgment and

respondent’s motion to dismiss and/or for summary judgment, both having been duly

opposed.

       {¶5}   A writ of habeas corpus is the proper remedy for a state prisoner to pursue

when he believes his present incarceration is not lawful. State ex rel. Nelson v. Griffin,

103 Ohio St.3d 167, 2004-Ohio-4754, ¶5. “[T]he burden of proof is upon the petitioner to

establish his right to release.” Halleck v. Koloski, 4 Ohio St.2d 76, 77 (1965) (citation

omitted). A writ of habeas corpus can only be granted if the petitioner establishes that

either (1) the sentencing court in his underlying criminal proceeding lacked jurisdiction to

convict him, or (2) he is still being held in prison although he has already served his entire

sentence. State ex rel. Vinson v. Gansheimer, 11th Dist. Ashtabula No. 2007-A-0042,

2007-Ohio-5205, ¶6.

       {¶6}   “Like other extraordinary-writ actions, habeas corpus is not available when

there is an adequate remedy in the ordinary course of law.” In re Goeller, 103 Ohio St.3d

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427, 2004-Ohio-5579, ¶6 (citation omitted); see also Cornell v. Schotten, 69 Ohio St.3d

466, 467 (1994) (habeas corpus may not be used as a substitute for other forms of action,

such as a direct appeal or postconviction relief petition).

       {¶7}   When presented with a Civ.R. 12(B)(6) motion to dismiss, the factual

allegations of the complaint are accepted as true. It must appear beyond doubt that the

plaintiff can prove no set of facts entitling him to relief. O’Brien v. Univ. Community

Tenants Union, Inc., 42 Ohio St.2d 242 (1975), syllabus.

       {¶8}   Here, petitioner alleges the affidavit establishing probable cause for his

arrest was not properly notarized. He concludes, therefore, that the trial court never

acquired subject matter jurisdiction to convict him due to this alleged defect. Petitioner

reaches this conclusion by relying on Crim.R. 3, which governs criminal complaints, not

arrest warrants. “In addition, ‘it is now well established that even if an arrest is illegal it

does not affect the validity of subsequent proceedings based on a valid indictment nor

furnish [a] ground for release by habeas corpus after conviction.’” State ex rel. Jackson

v. Brigano, 88 Ohio St.3d 180, 181 (2000), quoting Krauter v. Maxwell, 3 Ohio St.2d 142,

144 (1965), citing Brown v. Maxwell, 174 Ohio St. 29, 30 (1962).

       {¶9}   Petitioner appears to additionally argue that either a criminal complaint was

not filed against him or, if one was filed, it was defective. This claim is also not cognizable

in habeas corpus because petitioner was convicted upon an indictment. Id., citing State

ex rel. Dozier v. Mack, 85 Ohio St.3d 368, 369 (1999) and Thornton v. Russell, 82 Ohio

St.3d 93, 94 (1998); Harris v. Bagley, 97 Ohio St.3d 98, 2002-Ohio-5369, ¶3.

       {¶10} Even if petitioner’s claims are accepted as true, they do not implicate the

trial court’s subject matter jurisdiction. Moreover, petitioner had adequate remedies at




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law in which to raise these alleged defects. See Williamson v. Williams, 103 Ohio St.3d

25, 2004-Ohio-4111, ¶3 (citations omitted).

       {¶11} Petitioner’s petition therefore fails to state a claim upon which habeas relief

can be granted.

       {¶12} The instant petition is additionally barred by the doctrine of res judicata, as

the issues now raised are substantially the same as those raised in his first petition for

habeas corpus. See State ex rel. Childs v. Lazaroff, 90 Ohio St.3d 519, 520 (2001), citing

Hudlin v. Alexander, 63 Ohio St.3d 153, 156 (1992) (“res judicata is applicable to

successive habeas corpus petitions because habeas corpus petitioners have the right to

appeal adverse judgments in habeas corpus cases”). We note, therefore, that any

additional habeas corpus petitions which raise these identical arguments may be

dismissed by this court, without notice, sua sponte. See Hill v. Kelly, 11th Dist. Trumbull

No. 2011-T-0094, 2011-Ohio-6341, ¶4, citing State ex rel. Thompson v. Spon, 83 Ohio

St.3d 551, 553 (1998) and State ex rel. Bruggeman v. Ingraham, 87 Ohio St.3d 230, 231

(1999) (“sua 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”).

       {¶13} Respondent’s motion to dismiss is granted, and petitioner’s motion for

summary judgment is overruled.

       {¶14} The petition for habeas corpus is hereby dismissed.


THOMAS R. WRIGHT, P.J., DIANE V. GRENDELL, J., TIMOTHY P. CANNON, J.,
concur.




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