Billiter v. Banks

[Cite as Billiter v. Banks, 2012-Ohio-4556.]
STATE OF OHIO, NOBLE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
FRED BILLITER ) CASE NO. 12 NO 394
)
PETITIONER )
)
VS. ) OPINION AND
) JUDGMENT ENTRY
EDWARD BANKS, WARDEN )
NOBLE CORRECTIONAL )
INSTITUTION )
)
RESPONDENT )
CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus
JUDGMENT: Dismissed.
APPEARANCES:
For Petitioner: Fred Billiter, Pro se
#383-177
Noble Correctional Institution
15708 McConnellsville Road
Caldwell, Ohio 43724
For Respondent: Atty. Mike DeWine
Attorney General of Ohio
Atty. Jerri L. Fosnaught
Senior Assistant Attorney General
Criminal Justice Section
150 East Gay Street, 16th Floor
Columbus, Ohio 43215
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: September 28, 2012
[Cite as Billiter v. Banks, 2012-Ohio-4556.]
PER CURIAM.
{¶1} Petitioner, Fred Billiter, (“Petitioner”) is a prisoner at the Noble
Correctional Institution and has filed a petition for writ of habeas corpus . Petitioner is
currently in the custody of Respondent Ed Banks (“Respondent”), warden of the
prison. In 1999, under Tuscarawas County Court of Common Please Case No.
1999-CR-080159, Petitioner pleaded guilty to two counts of rape, one count of
pandering obscenity involving a minor, and one count of gross sexual imposition. He
was sentenced to ten years in prison on each rape count, eight years for pandering,
and three years for gross sexual imposition, to be served consecutively for an
aggregate prison term of thirty-one years. Petitioner argues that his convictions for
rape and gross sexual imposition were allied offenses, and that gross sexual
imposition is a lesser included offense of rape. He believes that the maximum prison
term that could have been imposed was thirteen years. Petitioner contends that he
has served those thirteen years and should be released.
{¶2} Respondent requests that we dismiss the petition because claims of
allied offenses are not cognizable in habeas proceedings and because the issues
raised are res judicata. Respondent is correct in his arguments, and the petition is
dismissed.
{¶3} Petitioner was sentenced on November 3, 1999. Although he did not
file a timely direct appeal of his conviction and sentence, over the past 13 years he
has filed a variety of other actions related to his conviction and sentence. In 2006, he
filed a petition for writ of habeas corpus and/or mandamus in the Fifth District Court
of Appeals, Tuscarawas County, Ohio. He claimed that his indictment was invalid
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and that his sentence was unconstitutional. The court dismissed the petition, holding
that he had an adequate remedy by way of direct appeal to raise his claims and that
his alleged sentencing error was not cognizable in habeas. Billiter v. Hudson, 5th
Dist. No. 06AP110062 (Dec. 11, 2006).
{¶4} R.C. 2725.01 provides: “Whoever is unlawfully restrained of his liberty,
or entitled to the custody of another, of which custody such person is unlawfully
deprived, may prosecute a writ of habeas corpus, to inquire into the cause of such
imprisonment, restraint, or deprivation.” The writ of habeas corpus is an
extraordinary writ and will only be issued in certain circumstances of unlawful
restraint of a person's liberty where there is no adequate legal remedy at law, such
as a direct appeal or post-conviction relief. In re Pianowski, 7th Dist. No. 03MA16,
2003-Ohio-3881, ¶3, citing State ex rel. Pirman v. Money, 69 Ohio St. 3d 591, 593
635 N.E.2d 26 (1994). “Absent a patent and unambiguous lack of jurisdiction, a party
challenging a court's jurisdiction has an adequate remedy at law by appeal.” Smith v.
Bradshaw, 109 Ohio St. 3d 50, 2006-Ohio-1829, 845 N.E.2d 516, ¶10. If a person is
in custody by virtue of a judgment of a court of record and the court had jurisdiction to
render the judgment, the writ of habeas corpus will not be allowed. Tucker v. Collins,
64 Ohio St. 3d 77, 78, 591 N.E.2d 1241 (1992). The burden is on the petitioner to
establish a right to release. Halleck v. Koloski, 4 Ohio St. 2d 76, 77, 212 N.E.2d 601
(1965); Yarbrough v. Maxwell, 174 Ohio St. 287, 288, 189 N.E.2d 136 (1963). “Like
other extraordinary-writ actions, habeas corpus is not available when there is an
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adequate remedy in the ordinary course of law.” In re Complaint for Writ of Habeas
Corpus for Goeller, 103 Ohio St. 3d 427, 2004-Ohio-5579, 816 N.E.2d 594, ¶6.
{¶5} Respondent has filed a Civ.R. 12(B)(6) motion to dismiss for failure to
state a claim. The purpose of such a motion is to test the sufficiency of the
complaint. State el rel. Boggs v. Springfield Local School Dist. Bd. of Ed., 72 Ohio
St.3d 94, 647 N.E.2d 788 (1995). In order for a case to be dismissed for failure to
state a claim, it must appear beyond doubt that, even assuming all factual allegations
in the complaint are true, the nonmoving party can prove no set of facts that would
entitle that party to the relief requested. State ex rel. Pirman v. Money, 69 Ohio St. 3d
591, 593, 635 N.E.2d 26 (1994); Keith v. Bobby, 117 Ohio St. 3d 470, 2008-Ohio-
1443, 884 N.E.2d 1067, ¶10. If the petition does not meet the requirements of a
properly filed petition for writ of habeas corpus, or fails to state a facially viable claim,
it may be dismissed on motion by the respondent or sua sponte by the court. Flora v.
State, 7th Dist. No. 04 BE 51, 2005-Ohio-2382, ¶5.
{¶6} Sentencing errors based on a theory that allied offenses were not
considered by the trial court are nonjurisdictional errors and are not cognizable in an
extraordinary-writ action. See Smith v. Voorhies, 119 Ohio St. 3d 345, 2008-Ohio-
4479, 894 N.E.2d 44, ¶10.
{¶7} In addition, Petitioner previously filed a petition for habeas corpus with
the Fifth District Court of Appeals, and that petition was denied on the merits.
Petitioner challenged the validity of the indictment and the validity of his sentence in
his petition. The doctrine of res judicata has been consistently applied to habeas
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filings, and dismissal is warranted if the petitioner has filed previous petitions in which
the alleged error was or could have been raised. Wooton v. Brunsman, 112 Ohio
St.3d 153, 2006-Ohio-6524, 858 N.E.2d 413, ¶6; Hudlin v. Alexander, 63 Ohio St. 3d
153, 155-156, 586 N.E.2d (1992). The sentencing error alleged by Petitioner could
have been raised in his prior habeas filing. Petitioner's arguments regarding allied
offenses and lesser included offenses also could have been raised on direct appeal
but were not. Where the petitioner had adequate legal remedies, such as direct
appeal, the habeas petition must be dismissed. Thomas v. Eberlin, 7th Dist. No. 08
BE 14, 2008-Ohio-4663.
{¶8} For all the aforementioned reasons, we dismiss the petition for habeas
corpus.
{¶9} Costs taxed against Petitioner. Final order. Clerk to serve notice as
provided by the Civil Rules.
Waite, P.J., concurs.
Vukovich, J., concurs.
DeGenaro, J., concurs.