State ex rel. Kerr v. Turner (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Kerr v. Turner, Slip Opinion No. 2019-Ohio-4760.]
NOTICE
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SLIP OPINION NO. 2019-OHIO-4760THE STATE EX REL. KERR, APPELLANT, v. TURNER, WARDEN, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Kerr v. Turner, Slip Opinion No.
2019-Ohio-4760.]
Habeas corpus—Inmate’s claims barred by res judicata and not cognizable in
habeas—Court of appeals’ dismissal of complaint affirmed.
(No. 2019-0620—Submitted August 6, 2019—Decided November 21, 2019.)
APPEAL from the Court of Appeals for Marion County, No. 9-19-06.
________________
Per Curiam.
{¶ 1} Appellant, Jeremy Kerr, an inmate at North Central Correction
Institution, appeals the dismissal of his complaint for a writ of habeas corpus. We
affirm.
Background
{¶ 2} Kerr was convicted in the Wood County Court of Common Pleas of
four counts of forgery and four counts of tampering with evidence. State v. Kerr,
SUPREME COURT OF OHIO
Wood C.P. No. 2012CR0389. In June 2013, the trial court sentenced him to an
aggregate prison term of seven years and eight months.
{¶ 3} On January 28, 2019, he filed a petition for a writ of habeas corpus in
the Third District Court of Appeals against appellee, Warden Neil Turner. The
court of appeals dismissed the complaint on the grounds that it failed to state a claim
for habeas relief and was barred by res judicata.
{¶ 4} Kerr appealed.
Analysis
{¶ 5} A writ of habeas corpus “is warranted in certain extraordinary
circumstances ‘where there is an unlawful restraint of a person’s liberty and there
is no adequate remedy in the ordinary course of law.’ ” Johnson v. Timmerman-
Cooper, 93 Ohio St.3d 614, 616, 757 N.E.2d 1153 (2001), quoting Pegan v.
Crawmer, 76 Ohio St.3d 97, 99, 666 N.E.2d 1091 (1996). With few exceptions,
habeas corpus will lie only to challenge the jurisdiction of the sentencing court.
State ex rel. Quillen v. Wainwright, 152 Ohio St.3d 566, 2018-Ohio-922, 99 N.E.3d
360, ¶ 6.
{¶ 6} Kerr’s complaint challenges his convictions under four theories, none
of which is cognizable in habeas corpus. First, he argues that the prosecution failed
to prove every element of the charged forgery offenses. But habeas corpus is not
available to challenge 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.
{¶ 7} Next, Kerr asserts that the evidence did not establish that the crimes
occurred in Wood County. But an alleged failure to prove venue “must be raised
by appeal” and is not a “question[] cognizable in habeas corpus.” Cook v. Maxwell,
2 Ohio St.2d 107, 108-109, 206 N.E.2d 558 (1965).
{¶ 8} Finally, Kerr argues that the trial court improperly admitted hearsay
evidence and that the state engaged in prosecutorial misconduct. These claims are
not cognizable in habeas corpus. Davie v. Edwards, 80 Ohio St.3d 170, 170-171,
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January Term, 2019
685 N.E.2d 228 (1997) (challenges to the admissibility of evidence); Keith v.
Bobby, 117 Ohio St.3d 470, 2008-Ohio-1443, 884 N.E.2d 1067, ¶ 15 (claims of
prosecutorial misconduct).
{¶ 9} The court of appeals also correctly concluded that Kerr’s claims are
barred by res judicata. In his own complaint, Kerr states that he took a direct appeal
from his convictions. And in that appeal, he unsuccessfully challenged venue and
the sufficiency of the evidence—the same claims that feature in his habeas corpus
petition. See State v. Kerr, 6th Dist. Wood No. WD-13-047, 2014-Ohio-5455, ¶ 1,
29.
{¶ 10} For these reasons, we affirm the court of appeals’ judgment
dismissing Kerr’s complaint for a writ of habeas corpus.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
_________________
Jeremy Kerr, pro se.
Dave Yost, Attorney General, and Stephanie L. Watson, Assistant Attorney
General, for appellee.
_________________
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