Opinion
No. 38849
Decided July 1, 1964.
Habeas corpus — Not available to review issue previously raised on appeal.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. In September 1962, petitioner, Joseph Naples, was indicted by the Grand Jury of Mahoning County on two indictments, one charging him with the crime of unlawfully promoting a scheme of chance and the other with unlawfully and fraudulently receiving and concealing stolen property. While represented by counsel, he was tried to and convicted by a jury. An appeal was prosecuted to the Court of Appeals which affirmed the conviction, and petitioner's appeals as of right were dismissed by this court.
Mr. Dan W. Duffy, for petitioner.
Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
Petitioner bases his right to release on the ground that he was convicted on evidence procured by an illegal search. He contends that the search was illegal on the basis that the search warrant was not based upon legally sufficient probable cause.
As shown above, petitioner appealed to this court from his conviction. This court will take judicial notice of the record of a case previously before it involving the same subject matter. Hughes v. County Board of Revision of Butler County, 143 Ohio St. 559. An examination of the assignments of error in cases No. 38471 and No. 38472 ( State v. Naples, 175 Ohio St. 550) reveals that petitioner raised the same issue in that case as the one raised in the present case.
An accused cannot by way of habeas corpus obtain a second review of an issue he previously properly raised on appeal. Ex parte Stringer, 171 Ohio St. 400; and Graff v. Green, Supt., 172 Ohio St. 294.
Petitioner having previously raised the same issue on appeal, the relief is denied.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.