McClellan v. Mack
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[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as McClellan v. Mack, Slip Opinion No. 2011-Ohio-4216.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2011-OHIO-4216 MCCLELLAN, APPELLANT, v. MACK, WARDEN, APPELLEE. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as McClellan v. Mack, Slip Opinion No. 2011-Ohio-4216.] Habeas corpus Res judicata does not deprive a court of jurisdiction and hence is not a basis for extraordinary relief Dismissal of petition affirmed. (No. 2011-0546 Submitted August 8, 2011 Decided September 1, 2011.) APPEAL from the Court of Appeals for Montgomery County, No. 24326. __________________ Per Curiam. {¶ 1} We affirm the judgment dismissing the petition of appellant, James McClellan, for a writ of habeas corpus to compel his immediate release from prison. {¶ 2} McClellan s claim that res judicata barred the relitigation of the propriety of a traffic stop that led to a search of his vehicle and the seizure of evidence used by the state to prosecute him is not cognizable in habeas corpus. [R]es judicata is not an appropriate basis for extraordinary relief, because res judicata does not divest a trial court of jurisdiction to decide its applicability, and SUPREME COURT OF OHIO the denial of this defense by the trial court can be adequately challenged by postjudgment appeal. Smith v. Voorhies, 119 Ohio St.3d 345, 2008-Ohio-4479, 894 N.E.2d 44, ¶ 9, quoting State ex rel. Nationwide Mut. Ins. Co. v. Henson, 96 Ohio St.3d 33, 2002-Ohio-2851, 770 N.E.2d 580, ¶ 11. {¶ 3} Moreover, McClellan could have raised this claim in his direct appeal. But he did not. State v. McClellan, Allen App. No. 1-09-21, 2010-Ohio314. Thus, res judicata bars raising it here. Smith at ¶ 11. And the mere fact that he has already unsuccessfully invoked his appellate remedy does not thereby entitle him to the requested extraordinary relief in habeas corpus. Everett v. Eberlin, 114 Ohio St.3d 199, 2007-Ohio-3832, 870 N.E.2d 1190, ¶ 6. {¶ 4} Therefore, the court of appeals correctly dismissed McClellan s petition for a writ of habeas corpus, and we affirm that judgment. Judgment affirmed. O CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur. __________________ James McClellan, pro se. Michael DeWine, Attorney General, and Gene D. Park, Assistant Attorney General, for appellee. ______________________ 2
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