[Cite as Christian v. Bracy,

.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY

WAYNE CHRISTIAN, CASE NO. 2022-T-0051

Petitioner, Original Action for Writ of Habeas Corpus -v-

CHARMAINE BRACY, WARDEN,

Respondent.

PER CURIAM OPINION

Decided: September 12, 2022 Judgment: Petition dismissed

Wayne Christian, pro se, PID: A521-627, Trumbull Correctional Institution, P.O. Box 901, Leavittsburg, OH 44430 (Petitioner).

Dave Yost, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th Floor, Columbus, OH 43215, and Lisa K. Browning, Assistant Attorney General, Criminal Justice Section, 30 East Broad Street, 23rd Floor, Columbus, OH 43215 (For Respondent).

PER CURIAM.

{¶1} This matter is before the court on the petition for a writ of habeas corpus

filed by petitioner, Wayne Christian (“Mr. Christian”), pro se, against respondent,

Charmaine Bracy, Warden (“respondent”); respondent’s Civ.R. 12(B)(6) motion to

dismiss; and Mr. Christian’s brief in opposition.

{¶2} Because none of Mr. Christian’s claims are cognizable in habeas corpus,

we grant respondent’s motion and dismiss Mr. Christian’s petition. Substantive and Procedural History

{¶3} Mr. Christian is an inmate at the Trumbull Correctional Institution, where

respondent is the warden. In 2007, a jury in the Jefferson County Court of Common Pleas

found Mr. Christian guilty of nine counts of felonious assault in violation of R.C.

2903.11(B)(3) for engaging in sexual conduct with a minor while knowing that he was HIV

positive. The trial court sentenced Mr. Christian to eight years in prison on each count,

with five counts to be served consecutively, for an aggregate prison term of 40 years. He

was also classified as a sexual predator. The Seventh District Court of Appeals affirmed

his convictions, sentences, and sexual predator classification. See State v. Christian, 7th

Dist. Jefferson No. 07 JE 9,

.1 The Supreme Court of Ohio denied Mr.

Christian’s motion for leave to file a delayed appeal. See State v. Christian,

,

,

.

{¶4} In 2016, Mr. Christian, pro se, filed a “motion for declaratory judgment” in

the trial court, arguing that R.C. 2903.11(B)(3) violates his federal and state constitutional

rights to equal protection. The trial court denied his motion. The Seventh District affirmed,

determining that R.C. 2903.11(B)(3) is constitutional. See State v. Christian, 7th Dist.

Jefferson No. 16 JE 0030,

, reconsideration denied,

.

The Supreme Court of Ohio declined jurisdiction. See State v. Christian,

,

,

.

{¶5} In 2018, Mr. Christian, pro se, filed a federal petition for a writ of habeas

corpus against the respondent, in which he asserted the same equal protection argument.

1. The Seventh District denied Mr. Christian’s delayed application for reconsideration that he filed nearly 12 years later. See State v. Christian,

,

(7th Dist.). 2

Case No. 2022-T-0051 The federal district court denied his petition, determining that his claims were time-barred.

See Christian v. Bracy, S.D.Ohio Case No. 2:18-CV-652,

(July 24,

2018) (magistrate judge’s report and recommendation),

(May 31,

2019) (adopting magistrate judge’s report and recommendation).

{¶6} On June 3, 2022, Mr. Christian, pro se, filed a petition for a writ of habeas

corpus in this court seeking his immediate release from prison. He alleges that R.C.

2903.11(B)(3) violates his state and federal constitutional rights to equal protection,

resulting in a prison sentence that violates his state and federal constitutional rights to be

free from cruel and unusual punishment.

{¶7} Respondent appeared through counsel and filed a motion to dismiss

pursuant Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted. Mr.

Christian filed a brief in opposition.

Standard of Review

{¶8} “A motion to dismiss for failure to state a claim upon which relief can be

granted tests the sufficiency of the complaint.” Volbers-Klarich v. Middletown Mgt., Inc.,

,

,

, ¶ 11. A court may dismiss a

habeas action under Civ.R. 12(B)(6) “if, after all factual allegations are presumed true and

all reasonable inferences are made in [the petitioner’s] favor, it appears beyond doubt

that he could prove no set of facts entitling him to the requested extraordinary relief in

habeas corpus.” Keith v. Bobby,

,

,

.

3

Case No. 2022-T-0051 Law and Analysis

{¶9} A writ of habeas corpus is an extraordinary remedy that is appropriate only

when the petitioner is entitled to immediate release from confinement. State ex rel.

Jackson v. McFaul,

,

(1995). The burden of proof

is on the petitioner to establish his right to release. Chari v. Vore,

,

(2001).

{¶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,

,

,

, or when the sentencing court

patently and unambiguously lacked subject-matter jurisdiction, Stever v. Wainwright,

,

,

. Habeas corpus is not available

when the petitioner has or had an adequate remedy in the ordinary course of the law

unless the trial court’s judgment is void for lack of jurisdiction. State ex rel. Davis v.

Turner,

,

,

.

{¶11} Mr. Christian does not contend that his maximum sentence of 40 years in

prison has expired; rather, he purports to challenge the trial court’s jurisdiction. Mr.

Christian cites the Supreme Court of the United States’ decision in Montgomery v.

Louisiana,

,

,

(2016), for the proposition that

“a court lacks jurisdiction to impose sentence on a conviction reached under an

unconstitutional statute.” He contends that because R.C. 2903.11(B)(3) violates his

constitutional rights to equal protection, his convictions under that statute are null and

void; therefore, the trial court lacked jurisdiction to impose his sentences.

4

Case No. 2022-T-0051 {¶12} Mr. Christian’s reliance on Montgomery is misplaced. In that case, the

Supreme Court held that “when a new substantive rule of constitutional law controls the

outcome of a case, the Constitution requires state collateral-review courts to give

retroactive effect to that rule.”

. This is because “[a] penalty imposed pursuant

to an unconstitutional law is no less void because the prisoner’s sentence became final

before the law was held unconstitutional.”

. Thus, in Montgomery, the Supreme

Court determined that its prohibition on mandatory life sentences without parole for

juveniles was a new substantive constitutional rule that was retroactive on state collateral

review. See

.

{¶13} Here, there is no new substantive constitutional rule because the Supreme

Court has not found R.C. 2903.11(B)(3) to be unconstitutional. Accordingly, Mr.

Christian’s convictions and sentences are not void based on Montgomery.

{¶14} The Supreme Court of Ohio has explained that “void judgments” are those

“entered by a court lacking subject-matter or personal jurisdiction.” State v. Harper,

,

,

. “When a case is within a court’s

subject-matter jurisdiction and the parties are properly before the court, any error in the

exercise of its jurisdiction renders the court’s judgment voidable, not void.” (Emphasis

added.) Id. at ¶ 26. Thus, the court has held that “habeas corpus will not lie to challenge

the constitutionality of a statute under which the defendant was convicted, so long as the

court in which the defendant was convicted had jurisdiction to determine the constitutional

question (in which case, the defendant has or had an adequate remedy by way of

appeal).” Steele v. Harris,

,

,

.

5

Case No. 2022-T-0051 {¶15} Mr. Christian has not alleged or purported to establish that the trial court

lacked jurisdiction to determine the constitutionality of R.C. 2903.11(B)(3). Therefore, his

equal protection claim is not cognizable in habeas corpus.

{¶16} In addition, the Seventh District previously considered and rejected Mr.

Christian’s equal protection claim, and the Supreme Court of Ohio declined jurisdiction.

The doctrine of res judicata precludes a petitioner from using habeas corpus to gain

successive appellate review of previously litigated issues. State ex rel. Gibson v. Sloan,

,

,

.

{¶17} Mr. Christian’s cruel and unusual punishment claim is also not cognizable

in habeas corpus. Mr. Christian’s argument that his sentence is unconstitutional does not

implicate the trial court’s jurisdiction. See Stevens v. Hill, Slip Opinion No. 2022-Ohio-

2479, ¶ 9. Moreover, the unconstitutionality of a sentence is a matter that may be raised

at the time of its imposition or on direct appeal.

{¶18} For the foregoing reason, respondent’s motion to dismiss is granted, and

Mr. Christian’s petition is dismissed.

THOMAS R. WRIGHT, P.J., MARY JANE TRAPP, J., JOHN J. EKLUND, J., concur.

6

Case No. 2022-T-0051