1997 OHIO 127 - Davie v. Edwards

[This opinion has been published in Ohio Official Reports at

80 Ohio St.3d 170

.]




              DAVIE, APPELLANT, V. EDWARDS, WARDEN, APPELLEE.
                     [Cite as Davie v. Edwards,

1997-Ohio-127

.]
Habeas corpus compelling release from Ross Correctional Institution—Petition
        dismissed, when.
    (No. 97-681—Submitted September 9, 1997—Decided October 29, 1997.)
       APPEAL from the Court of Appeals for Ross County, No. 96CA2207.
                                  __________________
        {¶ 1} According to appellant, Michael D. Davie, in November 1992, after
he was stopped by police officers in Cleveland for a traffic violation, officers found
a firearm and other items in his possession, including a checkbook containing an
Akron, Ohio address. In April 1993, the Summit County Court of Common Pleas
convicted Davie of attempted murder, felonious assault, aggravated robbery, and
aggravated burglary, and sentenced him accordingly.
        {¶ 2} In April 1996, Davie filed a petition in the Court of Appeals for Ross
County for a writ of habeas corpus to compel his release from prison. Davie
claimed that his sentencing court lacked jurisdiction because the Cuyahoga County
Court of Common Pleas first obtained jurisdiction over him on a concealed weapon
charge and that the Summit County court improperly admitted evidence from the
Cleveland search. After appellee, Ross Correctional Institution Warden Ronald
Edwards, filed a Civ.R. 12(B)(6) motion to dismiss, Davie moved for leave to
amend his petition to include a claim that “he had been convicted on an indictment
not properly found by a Grand Jury ….” After considering both Davie’s petition
and motion for leave to amend, the court of appeals granted Edwards’s motion and
dismissed the petition.
        {¶ 3} This cause is now before the court upon an appeal as of right.
                                  __________________
                             SUPREME COURT OF OHIO




        Michael D. Davie, pro se.
        Betty D. Montgomery, Attorney General, and Lillian B. Earl, Assistant
Attorney General, for appellee.
                              __________________
        Per Curiam.
        {¶ 4} Davie asserts that the court of appeals erred in dismissing his habeas
corpus petition. Davie’s main claims, however, merely challenge the admissibility
of evidence obtained from the Cuyahoga County search in his Summit County trial
and the validity or sufficiency of his indictment. These claims are not cognizable
in habeas corpus, and Davie had an adequate remedy by direct appeal to raise them.
Ellis v. State (1953),

158 Ohio St. 489

49 O.O. 418

110 N.E.2d 129

 (Petitioner
had adequate remedy by appeal to review errors in admission and rejection of
evidence.); State ex rel. Beaucamp v. Lazaroff (1997),

77 Ohio St.3d 237, 238

673 N.E.2d 1273, 1274

 (“[F]ollowing conviction and sentence, the defendant’s remedy
to challenge the validity or sufficiency of the indictment is by direct appeal rather
than habeas corpus.”).
        {¶ 5} Davie’s    remaining   claim,   that   Cuyahoga    County     obtained
jurisdictional priority over him on a concealed weapon charge, is likewise meritless.
Cf., e.g., State ex rel. Sellers v. Gerken (1995),

72 Ohio St.3d 115, 117

647 N.E.2d 807, 809

 (“In general, it is a condition of the operation of the state jurisdictional
priority rule that the claims or causes of action be the same in both cases ….”).
The Cuyahoga County and Summit County charges, as alleged in Davie’s petition,
were not the same.
        {¶ 6} Based on the foregoing, the court of appeals properly dismissed the
petition.
        {¶ 7} Accordingly, the judgment of the court of appeals is affirmed.
                                                                 Judgment affirmed.




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                            January Term, 1997




      MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                           __________________




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