JACKSON v. SMITH (2024)

{¶ 1} Appellant, Barnard M. Jackson, appeals the judgment of the Seventh District Court of Appeals dismissing his petition for a writ of habeas corpus against David W. Gray, the former warden of Belmont Correctional Institution. Jackson argued that his conviction for a firearm specification is void because the indictment cited the wrong statute in charging him with the specification. He also asserted ineffective assistance of counsel. We affirm the Seventh District's dismissal of Jackson's petition because he did not state a cognizable habeas claim.

I. BACKGROUND

A. Indictment and No-Contest Plea

{¶ 2} In May 2020, Jackson was indicted in the Montgomery County Court of Common Pleas for felonious assault with a deadly weapon, in violation of R.C. 2903.11(A)(2). The indictment stated that that count carried a specification under “R.C. 2923.161” for “discharging a firearm from a motor vehicle.” He was also indicted on four other counts.

{¶ 3} Jackson pleaded no contest to and was convicted of felonious assault with a deadly weapon under R.C. 2903.11(A)(2), the firearm specification attached to that count, and three of the other counts. He was sentenced to two to three years on the felonious-assault count, to be served concurrently with shorter sentences imposed for his convictions on the other counts. For the firearm specification, he received a mandatory three-year prison sentence under R.C. 2941.145, to be served prior to and consecutively to the two-to-three-year sentence for his convictions for the underlying offenses. In total, Jackson was sentenced to five to six years in prison.

B. Direct Appeal

{¶ 4} Jackson appealed his convictions, but he did not assert in his appeal the arguments that he has since asserted in his petition for a writ of habeas corpus. See State v. Jackson, 2022-Ohio-1522, 2022 WL 1439204, ¶ 17, 39. The Second District Court of Appeals affirmed his convictions.

C. Habeas Corpus Petition

{¶ 5} In March 2023, Jackson filed a petition for a writ of habeas corpus in the Seventh District Court of Appeals. Jackson argued that his indictment was invalid because its language describing the firearm specification does not match the language of the specification statute cited in the indictment. Regarding the specification, the indictment charged “a violation of [R.C.] 2923.161 ․ that was committed by discharging a firearm from a motor vehicle other than a manufactured home.” Jackson noted that R.C. 2923.161 actually defines a different firearm specification—one not involving a motor vehicle.

{¶ 6} Jackson argued that in the absence of a valid specification attached to the felonious-assault count, the trial court was not authorized to impose the mandatory three-year prison term for his conviction for the specification. A firearm-specification statute, R.C. 2941.145, was cited in the trial court's termination entry, but Jackson argued that the specification statute that matches his conduct and the descriptive language in the indictment is R.C. 2941.146. Therefore, Jackson contended, his conviction for the firearm specification is void and he has been unlawfully restrained since the day he was sentenced.

{¶ 7} Additionally, Jackson claimed that his counsel was ineffective for not challenging the allegedly defective indictment at the plea colloquy, at the sentencing hearing, or on appeal.

D. Dismissal and this Appeal

{¶ 8} The warden filed a motion to dismiss under Civ.R. 12(B)(6). The Seventh District concluded that a petition for a writ of habeas corpus was not the appropriate mechanism to challenge the validity of the indictment, that Jackson had an adequate remedy in the ordinary course of the law in the form of a direct appeal, and that the trial court had jurisdiction over his criminal case. Accordingly, the Seventh District granted the warden's motion and dismissed Jackson's petition.

{¶ 9} Jackson has appealed to this court as of right.

II. ANALYSIS

{¶ 10} We review de novo a judgment dismissing a petition for a writ of habeas corpus under Civ.R. 12(B)(6). State ex rel. Davis v. Turner, 164 Ohio St.3d 395, 2021-Ohio-1771, 172 N.E.3d 1026, ¶ 8. 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 immediate release from prison or 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. Generally, a writ of habeas corpus is “ ‘available only when the petitioner's maximum sentence has expired and he is being held unlawfully.’ ” Leyman v. Bradshaw, 146 Ohio St.3d 522, 2016-Ohio-1093, 59 N.E.3d 1236, ¶ 8, quoting Heddleston v. Mack, 84 Ohio St.3d 213, 1998-Ohio-320, 702 N.E.2d 1198, ¶ 6. “Habeas corpus is not available when the petitioner has an adequate remedy in the ordinary course of law, unless the trial court's judgment is void for lack of jurisdiction.” State ex rel. Jackson v. Watson, 172 Ohio St.3d 380, 2023-Ohio-401, 224 N.E.3d 34, ¶ 7.

{¶ 11} Jackson argues that his conviction for the firearm specification and the mandatory prison term imposed for it are void because the indictment's citation to an inapplicable specification statute deprived the trial court of jurisdiction to convict him of the specification, and he notes that he is currently being held past the prison term imposed for his felonious-assault conviction, which was two to three years. Jackson also argues that the incorrect citation in the indictment divested the trial court of subject-matter jurisdiction “because the statute and its contents were against the weight of the evidence and the testimony of all witnesses.” The warden argues that Jackson had an adequate remedy in the ordinary course of the law because he could have challenged the indictment on direct appeal. In reply, Jackson argues that he could not have asserted that argument on direct appeal, because he was unaware of the issue at that time.

A. The Trial Court Had Jurisdiction

{¶ 12} The Montgomery County Court of Common Pleas had jurisdiction over Jackson and his criminal case. R.C. 2931.03; State ex rel. Thompson v. Gonzalez, 174 Ohio St.3d 508, 2024-Ohio-897, 237 N.E.3d 207, ¶ 13 (noting that a court of common pleas had subject-matter jurisdiction over criminal cases involving felonies). Jackson relies on a decision in which the Fourth District Court of Appeals vacated part of a trial court's judgment imposing a mandatory prison term under R.C. 2941.145 because—given the absence in the indictment of certain statutory language—the trial court lacked a statutory basis to impose the mandatory term. See State v. Clay, 2013-Ohio-4649, 2013 WL 5740884, ¶ 6, 78, 89 (4th Dist.). However, Clay is of limited applicability here because it was a direct appeal and the Fourth District did not conclude that the trial court lacked jurisdiction.

{¶ 13} Significantly, we have more recently held that an argument alleging that a defendant was convicted of an uncharged offense “does not present a jurisdictional defect” but, rather, is “an attack upon the sufficiency of the indictment, which is not cognizable in habeas corpus.” DeVore v. Black, 166 Ohio St.3d 311, 2021-Ohio-3153, 185 N.E.3d 1025, ¶ 9; accord Patrick v. Bunting, 150 Ohio St.3d 537, 2017-Ohio-6954, 83 N.E.3d 926, ¶ 7 (habeas corpus is not available to challenge an indictment). Thus, Jackson's claim is not cognizable in habeas corpus.

B. Direct Appeal Was an Adequate Remedy

{¶ 14} Despite Jackson's protest that he was not previously aware of the alleged error in the indictment, the alleged error existed when he filed his appeal, and he had the opportunity in his direct appeal to make the arguments he asserts here. His failure to do so does not render his direct appeal to be an inadequate remedy in the ordinary course of the law. See Jackson v. Wilson, 100 Ohio St.3d 315, 2003-Ohio-6112, 798 N.E.2d 1086, ¶ 9 (the fact that adequate remedies were no longer available because habeas petitioner failed to timely pursue them does not render them inadequate). Therefore, the Seventh District correctly held in this case that Jackson had an adequate remedy in the ordinary course of the law.

C. Other Arguments Not Cognizable in Habeas Corpus

{¶ 15} Regarding Jackson's remaining arguments, a claim of ineffective assistance of trial or appellate counsel is not cognizable in a habeas action, see Handcock v. Shoop, 156 Ohio St.3d 282, 2019-Ohio-718, 125 N.E.3d 872, ¶ 6, and Jackson has waived his weight-of-the-evidence argument by failing to raise it below, see State ex rel. Haddix v. Warden, 172 Ohio St.3d 339, 2023-Ohio-1637, 223 N.E.3d 478, ¶ 13. In any event, because Jackson pleaded no contest, no trial was held and no evidence was weighed. See State v. Leffler, 2019-Ohio-3964, 2019 WL 4745379, ¶ 35 (7th Dist.) (because a no-contest plea is an admission of the truth of the facts alleged in the indictment, a defendant who pleads no contest may not claim on appeal that his conviction was against the manifest weight of the evidence). For these reasons, Jackson has failed to state a claim for a writ of habeas corpus.

III. CONCLUSION

{¶ 16} The Seventh District Court of Appeals correctly dismissed Jackson's petition for a writ of habeas corpus, and we therefore affirm that court's judgment.

Judgment affirmed.

Per Curiam.

The per curiam opinion below was joined by Kennedy, C.J., and Fischer, DeWine, Donnelly, Stewart, Brunner, and Deters, JJ.