[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. White v. Nusbaum, Slip Opinion No. 2018-Ohio-4489.]




                                           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. 2018-OHIO-4489
   THE STATE EX REL. WHITE, APPELLANT, v. NUSBAUM, JUDGE, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as State ex rel. White v. Nusbaum, Slip Opinion No.
                                     2018-Ohio-4489.]
Mandamus and prohibition—Appellant not entitled to extraordinary relief in
        mandamus or prohibition to correct or vacate dismissal of an earlier
        petition for habeas corpus because common pleas judge properly dismissed
        that earlier petition on grounds of res judicata—Court of appeals’ dismissal
        affirmed.
    (No. 2018-0477—Submitted June 12, 2018—Decided November 7, 2018.)
       APPEAL from the Court of Appeals for Ross County, No. 18CA3626.
                                    ________________
        Per Curiam.
        {¶ 1} Appellant, Marcus D. White, appeals the dismissal of his complaint
for writs of mandamus and prohibition against appellee, Ross County Common
Pleas Court Judge Scott Nusbaum. We affirm.
                               SUPREME COURT OF OHIO




                                      Background
        {¶ 2} In May 2005, a Franklin County jury convicted White of murder and
felonious assault, with firearm specifications. State v. White, 10th Dist. Franklin
No. 05AP-1178, 2006-Ohio-4226, ¶ 5.              The court of appeals affirmed his
convictions but reversed his sentences and remanded the matter for a new
sentencing hearing. Id. at ¶ 35. On remand, the trial court judge sentenced White
to serve an aggregate prison sentence of 25 years to life. State v. White, Franklin
C.P. No. 03CR-7014 (Oct. 24, 2006). The court of appeals affirmed the new
sentence on February 21, 2008. State v. White, 10th Dist. Franklin No. 07AP-743,
2008-Ohio-701, ¶ 2. White is currently a prisoner in the Warren Correctional
Institution.
        {¶ 3} On January 2, 2014, White filed a petition for a writ of habeas corpus
in the Ross County Court of Common Pleas. State ex rel. White v. Robinson, Ross
C.P. No. 14 CI 01 (Apr. 7, 2014). The case was assigned to Judge Nusbaum. Judge
Nusbaum was unsure of the legal basis for the habeas corpus claim but ultimately
concluded that White was alleging that the trial court had improperly instructed the
jury. Id. On April 7, 2014, Judge Nusbaum granted the motion of the respondent,
Warden Norman Robinson,1 to dismiss based on res judicata and for failure to state
a claim cognizable in habeas.
        {¶ 4} Thereafter, on January 22, 2018, White commenced the present action
against Judge Nusbaum in the Fourth District Court of Appeals. White alleged that
Judge Nusbaum “patently and unambiguously” lacked jurisdiction to hear the
habeas complaint that White himself had filed. In his prayer for relief, White asked
the court of appeals to “stop [Judge Nusbaum’s] future unauthorized exercise of




1
  Robinson was then the warden of the Chillicothe Correctional Institution, where White was
apparently incarcerated at the time.




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                                 January Term, 2018




jurisdiction and to correct/vacate the results of [his] prior void and jurisdictionally
unauthorized actions” in that case.
        {¶ 5} Judge Nusbaum filed a motion to dismiss. The court of appeals
granted the motion on March 8, 2018. White appealed.
                                   Legal analysis
        {¶ 6} Under the Ohio Constitution, the Supreme Court and the courts of
appeals have original jurisdiction in habeas corpus. Ohio Constitution, Article IV,
Sections 2(B)(1)(c) and 3(B)(1)(c). In his brief to this court, White argues that the
common pleas courts have no such jurisdiction because the Ohio Constitution does
not directly confer it.
        {¶ 7} The Ohio Constitution provides that the courts of common pleas
“shall have such original jurisdiction over all justiciable matters and such powers
of review of proceedings of administrative officers and agencies as may be
provided by law.” Ohio Constitution, Article IV, Section 4(B). The General
Assembly has expressly conferred habeas jurisdiction on the common pleas courts.
R.C. 2725.02.
        {¶ 8} In his reply brief, White clarifies that he does not deny the jurisdiction
of common pleas courts to issue habeas corpus writs in some cases. Instead, his
theory is that a common pleas court “may hear the merits of a lower court or a court
of the same jurisdictional level, but not a higher court’s judgment.”
        {¶ 9} White is correct that a common pleas court hearing a habeas corpus
petition cannot sit in review of a higher court’s earlier judgment on an issue.
However, a habeas petition that fails to raise new issues, and instead raises issues
that were or could have been previously adjudicated by a higher (or indeed, any)
court, is barred by res judicata, not a lack of jurisdiction. See Haynes v. Voorhies,
110 Ohio St.3d 243, 2006-Ohio-4355, 852 N.E.2d 1198, ¶ 6, quoting State ex rel.
Rash v. Jackson, 102 Ohio St.3d 145, 2004-Ohio-2053, 807 N.E.2d 344, ¶ 12
(“insofar as [appellant] raised the issue of the propriety of the lesser included




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                             SUPREME COURT OF OHIO




offense * * * in his previous unsuccessful appeal, res judicata bars him from using
habeas corpus ‘to gain successive appellate reviews of the same issue.’ ”); Lipinski
v. Cuyahoga Cty. Common Pleas Court, 74 Ohio St.3d 19, 21, 655 N.E.2d 1303
(1995) (“res judicata is an affirmative defense which does not divest the
jurisdiction of the second tribunal to decide the validity of that defense”). That is
precisely what occurred here. When Judge Nusbaum considered White’s habeas
petition, he concluded that it raised an issue (improper jury instructions) that had
already been disposed of on direct appeal by the Tenth District Court of Appeals
and therefore dismissed White’s petition on the grounds of res judicata.
                                    Conclusion
       {¶ 10} White has not demonstrated that Judge Nusbaum lacked jurisdiction
over the habeas petition, and he is therefore not now entitled to relief in mandamus
or prohibition to undo Judge Nusbaum’s judgment.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and FRENCH, FISCHER, and DEGENARO, JJ., concur.
       O’DONNELL, KENNEDY, and DEWINE, JJ., concur in judgment only.
                               _________________
       Marcus D. White, pro se.
       Matthew S. Schmidt, Ross County Prosecuting Attorney, for appellee.
                               _________________




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