Lopez v. Russell, Unpublished Decision (10-14-2002)

OPINION VALEN, J.

{¶ 2} Petitioner-appellant, Miguel Steven Virruella Lopez, appeals the dismissal of his petition for a writ of habeas corpus. In a single assignment of error, appellant claims the trial court abused its discretion in dismissing his petition.

{¶ 3} Appellant essentially argues that the trial court lacked jurisdiction to sentence him on a conspiracy charge because the indictment failed to include an allegation that appellant committed an overt act in support of the conspiracy.

{¶ 4} Appellant's assignment is without merit. A claim that challenges the validity or sufficiency of an indictment is nonjurisdictional in nature and should have been raised on direct appeal, not in a habeas corpus action. See State ex rel. Raglin v.Brigano, 82 Ohio St.3d 410, 1998-Ohio-222. Habeas corpus is not available to challenge either the validity or sufficiency of an indictment. Luna v. Russell, 70 Ohio St.3d 561, 1994-Ohio-264, certiorari denied (1995), 513 U.S. 1094, 115 S.Ct. 759.

{¶ 5} Since the validity or sufficiency of the indictment could have been raised on direct appeal, the trial court correctly denied appellant's petition for habeas corpus.¹ Appellant's assignment of error is overruled and the judgment of the trial court is hereby affirmed.

POWELL, P.J., and YOUNG, J., concur.

¹ Appellant did not challenge the validity or sufficiency of the indictment on direct appeal. See State v. Lopez (Oct. 13, 2000), Greene App. No. 99-CA-120.