State ex rel. Barnette v. Hill

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Barnette v. Hill, Slip Opinion No. 2022-Ohio-2469.]
NOTICE
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2022-OHIO-2469THE STATE EX REL. BARNETTE, APPELLANT, v. HILL, WARDEN, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Barnette v. Hill, Slip Opinion No.
2022-Ohio-2469.]
Habeas corpus—Allegations of errors in grand-jury process not cognizable in
habeas corpus—Adequate remedy in ordinary course of law to challenge
validity of an indictment—Court of appeals’ judgment dismissing complaint
affirmed.
(No. 2021-1595—Submitted May 24, 2022—Decided July 20, 2022.)
APPEAL from the Court of Appeals for Marion County, No. 9-21-0030.
________________
Per Curiam.
{¶ 1} Appellant, Lorenza Barnette, an inmate at the Marion Correctional
Institution, appeals the judgment of the Third District Court of Appeals dismissing
his petition for a writ of habeas corpus against the prison’s warden, appellee Leon
Hill. Barnette has also filed a motion for an order compelling the Mahoning County
SUPREME COURT OF OHIO
Clerk of Courts to submit the complete record of his underlying criminal case for
consideration in this appeal. We deny the motion and affirm the judgment of the
court of appeals.
I. Background
{¶ 2} In October 2009, Barnette was indicted in Mahoning County on
multiple felonies, including aggravated murder. At trial, he was convicted of four
counts of aggravated murder, two counts of kidnapping, and one count of arson. He
was sentenced to two consecutive terms of life in prison without the possibility of
parole for the aggravated murders and an aggregate prison term of 21 years and 6
months for the other felonies; all sentences were ordered to be served consecutively.
{¶ 3} The Seventh District Court of Appeals affirmed the convictions and
sentences. State v. Barnette, 7th Dist. Mahoning No. 11 MA 196, 2014-Ohio-5673.
We declined to accept jurisdiction over an appeal. 143 Ohio St.3d 1405, 2015-Ohio-
2747, 34 N.E.3d 133.
{¶ 4} On September 13, 2021, Barnette filed a petition for a writ of habeas
corpus in the Third District. He claimed to be entitled to “an order of actual
innocence” and immediate release because of various alleged errors in the grand-jury
process that led to his indictment. The Third District granted Hill’s motion to dismiss
the petition for failure to state a claim upon which relief can be granted. 3d Dist.
Marion No. 9-21-30.
{¶ 5} Barnette appealed. Before filing his merit brief, Barnette filed a motion
to supplement the record, which Hill opposed.
II. Legal analysis
A. The Third District correctly dismissed the petition
{¶ 6} We review de novo a court of appeals’ judgment dismissing a petition
for a writ of habeas corpus. Davis v. Hill, 116 Ohio St.3d 516, 2022-Ohio-485, 187
N.E.3d 543, ¶ 6. To be entitled to a writ of habeas corpus, a petitioner must show
that he is being unlawfully restrained of his liberty and that he is entitled to
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January Term, 2022
immediate release from prison or other confinement. R.C. 2725.01; State ex rel.
Cannon v. Mohr, 155 Ohio St.3d 213, 2018-Ohio-4184, 120 N.E.3d 776, ¶ 10. “A
writ of habeas corpus ‘will lie only to challenge the jurisdiction of the sentencing
court. R.C. 2725.05. The few situations in which habeas corpus may lie to correct
a nonjurisdictional error are those in which there is no adequate remedy at law.’ ”
Kneuss v. Sloan, 146 Ohio St.3d 248, 2016-Ohio-3310, 54 N.E.3d 1242, ¶ 6,
quoting Appenzeller v. Miller, 136 Ohio St.3d 378, 2013-Ohio-3719, 996 N.E.2d
919, ¶ 9.
{¶ 7} In his petition, Barnette alleged that his convictions are void due to
errors in the grand-jury process. Specifically, he claimed that (1) there was no oath
or affirmation at the grand jury, (2) the indictment was not properly returned, (3)
the prosecutor improperly withheld portions of the grand-jury record, (4) the grand
jury lacked a quorum, (5) there was no probable-cause hearing before the grand
jury initiated its investigation, (6) the grand-jury members were not selected or
summoned according to law, and (7) the prosecutor presented misleading and
insufficient evidence to the grand jury. These allegations do not state a claim
cognizable in habeas corpus.
{¶ 8} “The manner by which an accused is charged with a crime is
procedural rather than jurisdictional, and after a conviction for crimes charged in
an indictment, the judgment binds the defendant for the crime for which he was
convicted.” Orr v. Mack, 83 Ohio St.3d 429, 430, 700 N.E.2d 590 (1998). An
inmate has an adequate remedy by way of direct appeal to challenge the validity of
an indictment. McDougald v. Bowerman, 161 Ohio St.3d 268, 2020-Ohio-3942,
162 N.E.3d 762, ¶ 9. Therefore, challenges to the validity of an indictment are not
cognizable in habeas corpus. State ex rel. Tarr v. Williams, 112 Ohio St.3d 51,
2006-Ohio-6368, 857 N.E.2d 1225, ¶ 4.
{¶ 9} Barnette’s petition reframed the issue as a due-process violation, but
due-process claims are not cognizable in habeas corpus. Jackson v. Johnson, 135
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SUPREME COURT OF OHIO
Ohio St.3d 364, 2013-Ohio-999, 986 N.E.2d 989, ¶ 3. Nor can Barnette’s petition
withstand dismissal by alleging prosecutorial misconduct. State ex rel. Hadlock v.
McMackin, 61 Ohio St.3d 433, 434, 575 N.E.2d 184 (1991) (allegation that
prosecutor secured indictment through fraud is not cognizable in habeas).
{¶ 10} For these reasons, we hold that the court of appeals correctly
dismissed Barnette’s petition for failure to state a claim upon which relief can be
granted.
B. Barnette is not entitled to relief based on a legal theory presented for the first
time on appeal
{¶ 11} In his merit brief on appeal, Barnette abandons his challenges to the
validity of his indictment in favor of an entirely new argument. Barnette’s
kidnapping conviction was subject to a mandatory five-year term of postrelease
control, which was not imposed in the 2009 sentencing entry. In 2019, the trial
court held a resentencing hearing and issued a new sentencing entry imposing
postrelease control. On appeal, the Seventh District held that the trial court had
exceeded the scope of its authority by holding a full resentencing hearing. The
Seventh District reversed and remanded “for the limited purpose to allow the trial
court to hold a notification of post release control hearing in accordance with R.C.
2929.191.” State v. Barnette, 7th Dist. Mahoning No. 19 MA 0114, 2020-Ohio-
6817, ¶ 26. On remand, the trial court journalized an entry in June 2021 that
provided notice of postrelease control but did not expressly reimpose the prison
sentences. Barnette now argues that the June 2021 entry controls and because that
entry did not reimpose his other sentences, he is entitled to immediate release.
{¶ 12} We decline to consider this argument. Barnette may not raise a new
argument for the first time on appeal. In an extraordinary-writ case, “a relator
‘waive[s] new claims that he raises on appeal by failing to raise them in his original
or amended petition.’ ” (Brackets sic.) State ex rel. Russell v. Dept. of Rehab. &
Corr., 153 Ohio St.3d 274, 2018-Ohio-2693, 104 N.E.3d 767, ¶ 12, quoting State
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January Term, 2022
ex rel. Scruggs v. Sadler, 102 Ohio St.3d 160, 2004-Ohio-2054, 807 N.E.2d 357,
¶ 6.
C. The motion to supplement the record
{¶ 13} In his motion to supplement the record, Barnette complains that the
record before this court contains only the habeas proceedings in the Third District.
He asks us to order the Mahoning County clerk to transfer the complete trial-court
record to aid this court in determining which sentencing entry is applicable. But if
Barnette considered the June 2021 entry relevant to his claims, then he should have
attached it to his petition when he filed it in September 2021.
{¶ 14} Barnette filed a habeas petition based on arguments that did not state
a claim for relief as a matter of law. Just as he may not raise arguments for the first
time on appeal, he may not add evidence to the appellate record in support of those
claims. Because Barnette has waived any arguments arising out of the June 2021
nunc pro tunc entry, it follows that the trial-court file has no relevant information.
We therefore deny the motion to supplement the record.
III. Conclusion
{¶ 15} We affirm the court of appeals’ dismissal of Barnette’s petition.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
Lorenza Barnette, pro se.
Dave Yost, Attorney General, and Maura O’Neill Jaite, Assistant Attorney
General, for appellee.
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