Nickelson v. Knab

[Cite as Nickelson v. Knab, 131 Ohio St.3d 199, 2012-Ohio-579.]
NICKELSON, APPELLANT, v. KNAB, WARDEN, APPELLEE.
[Cite as Nickelson v. Knab, 131 Ohio St.3d 199, 2012-Ohio-579.]
Habeas corpus—Res judicata bars attempt to obtain successive appellate review
of claim of unreasonable delay in sentencing—Res judicata bars filing of
successive habeas corpus petition—Judgment denying writ affirmed.
(No. 2011-1472—Submitted February 8, 2012—Decided February 21, 2012.)
APPEAL from the Court of Appeals for Ross County, No. 11CA3244.
__________________
Per Curiam.
{¶ 1} We affirm the judgment of the court of appeals dismissing the
petition of appellant, LeShawn Nickelson, for a writ of habeas corpus to compel
his release from prison. As the court of appeals held, Nickelson previously
unsuccessfully raised his claim of unreasonable delay in his sentencing in his
direct appeal, State v. Nickelson, 4th Dist. No. 09CA8, 2009-Ohio-7006, ¶ 11-12,
and res judicata bars Nickelson from using habeas corpus to obtain a successive
appellate review of the claim. Shie v. Smith, 123 Ohio St.3d 89, 2009-Ohio-4079,
914 N.E.2d 369, ¶ 2. Moreover, because Nickelson either raised or could have
raised his claim in a previous habeas corpus case, Nickelson v. Knab, 128 Ohio
St.3d 1423, 2011-Ohio-1049, 943 N.E.2d 570, res judicata also bars him from
filing a successive habeas corpus petition. Hazel v. Knab, 130 Ohio St.3d 22,
2011-Ohio-4608, 955 N.E.2d 378, ¶ 2.
{¶ 2} We also deny Nickelson’s motion for summary judgment. Civ.R.
56, which governs motions for summary judgment, is inapplicable to cases in this
court. See State v. McGettrick, 31 Ohio St.3d 138, 141, 509 N.E.2d 378 (1987),
fn. 5 (“Under ordinary circumstances, neither the Ohio Rules of Criminal
SUPREME COURT OF OHIO
Procedure nor the Ohio Rules of Civil Procedure are applicable to cases on
appeal”); State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State
Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 17
(“The Rules of Practice that govern original actions filed in this court do not
permit parties to file motions for summary judgment”). And notwithstanding
Nickelson’s claim to the contrary, appellee did file a timely merit brief.
{¶ 3} Further, we deny Nickelson’s request for oral argument because
the parties’ briefs are sufficient for the court to decide this appeal. State ex rel.
Tindira v. Ohio Police & Fire Pension Fund, 130 Ohio St.3d 62, 2011-Ohio-
4677, 955 N.E.2d 963, ¶ 55.
{¶ 4} Finally, we deny Nickelson’s motion to strike appellee’s merit
brief.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
LeShawn Nickelson, pro se.
Michael DeWine, Attorney General, and Morgan A. Linn, Assistant
Attorney General, for appellee.
______________________
2