[Cite as Billiter v. Banks,

.] 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,

.] 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 -2-

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,

, ¶3, citing State ex rel. Pirman v. Money,

, 593

(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,

,

,

, ¶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,

,

(1992). The burden is on the petitioner to

establish a right to release. Halleck v. Koloski,

,

(1965); Yarbrough v. Maxwell,

, 288,

(1963). “Like

other extraordinary-writ actions, habeas corpus is not available when there is an -3-

adequate remedy in the ordinary course of law.” In re Complaint for Writ of Habeas

Corpus for Goeller,

,

,

, ¶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.,

,

(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,

,

(1994); Keith v. Bobby,

, 2008-Ohio-

1443,

. 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,

.

{¶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,

, 2008-Ohio-

4479,

.

{¶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 -4-

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,

,

,

; Hudlin v. Alexander,

, 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,

.

{¶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.