Summary
In Mosely v. Echols, 62 Ohio St.3d 75, 76, 578 N.E.2d 454 (1991), we held that res judicata barred a postconviction collateral attack on the court of appeals' holding that the offender had not been sentenced for allied offenses of similar import.
Summary of this case from State v. WilliamsOpinion
No. 90-1246
Submitted May 21, 1991 —
Decided October 16, 1991.
APPEAL from the Court of Appeals for Cuyahoga County, No. 59314.
In 1985, appellant, Fred M. Mosely, was convicted of six counts of violating Section 1951, Title 18, U.S. Code, for using his position as a municipal court judge to unlawfully obtain property not due him. He was subsequently indicted under state law on three counts of theft in office, R.C. 2921.41, and three counts of grand theft, R.C. 2913.02. He pled no contest to the state charges in the Court of Common Pleas of Cuyahoga County, and was sentenced to two years' imprisonment on each count, to run consecutively, but concurrently with his federal sentence.
Appellant appealed his Ohio convictions, arguing, inter alia, that grand theft and theft in office are allied offenses of similar import under R.C. 2941.25, and that he should only have been convicted on one charge or the other, but not both. The appellate court affirmed his convictions, and this court dismissed his appeal for failure to prosecute.
In 1989, after his federal parole, appellant filed a petition for post-conviction relief in the trial court, claiming his convictions were a violation of the Double Jeopardy Clause and the allied-offenses statute. The court dismissed the petition on grounds of res judicata.
Subsequently, appellant filed a petition for writ of habeas corpus in the Court of Common Pleas of Pickaway County, the county in which he was incarcerated after his federal confinement. The court viewed his petition as a collateral attack on the allied-offenses issue and dismissed it.
Appellant filed a second petition for habeas corpus in the Court of Appeals for Cuyahoga County, the county in which he was convicted. That court also dismissed the petition, holding that his allied-offenses claim was not a jurisdictional issue and was res judicata. From this dismissal, he appeals.
Fred M. Mosely, pro se. Lee I. Fisher, Attorney General, and Jack W. Decker, for appellee.
Appellant argues that after the direct appeal of his convictions was affirmed, the Court of Appeals for Cuyahoga County ruled that theft and theft in office were allied offenses of similar import in State v. McGhee (1987), 37 Ohio App.3d 54, 523 N.E.2d 864, and State v. Tatum (May 21, 1987), No. 52137, unreported, 1987 WL 11396, and that this ruling should be applied retroactively to his case to eliminate six years of his prison term and cause his immediate release.
Appellant has no cause of action in habeas corpus because even if accepted, the issue he raises would not deprive the sentencing court of jurisdiction. When a person is confined by order of a court having proper jurisdiction, the writ of habeas corpus may not be allowed. R.C. 2725.05. Moreover, as a nonjurisdictional matter, the issue is clearly res judicata. Burch v. Morris (1986), 25 Ohio St.3d 18, 25 OBR 15, 494 N.E.2d 1137.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.