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In re Petition of Brown

Supreme Court of Ohio
Mar 7, 1990
49 Ohio St. 3d 222 (Ohio 1990)


No. 89-1396

Submitted November 14, 1989 —

Decided March 7, 1990.

Habeas corpus — Relief denied when adequate remedy at law exists.

APPEAL from the Court of Appeals for Montgomery County, No. 11698.

Petitioner-appellant, Edward C. Brown, was convicted in the Court of Common Pleas of Montgomery County of five counts of receiving stolen property, one count of trafficking in food stamps, and four counts of forgery. He was sentenced to five consecutive two-year terms of imprisonment on the receiving stolen property counts, a term of eighteen months for the trafficking and four consecutive terms of eighteen months on the forgery counts, to be served concurrently with all other sentences, and is imprisoned in the Chillicothe Correctional Institute, where respondent-appellee, Arthur Tate, Jr., is superintendent. He appealed his convictions to the Court of Appeals for Montgomery County, which affirmed the judgment of the trial court.

Thereafter, he filed a petition for a writ of habeas corpus ad prosequendum in the court of appeals, contending that he was denied effective assistance of counsel on appeal in violation of his constitutional rights under the Sixth and Fourteenth Amendments to the Constitution of the United States. He sought a new appeal or a new trial.

The court of appeals dismissed the petition for failure to state a claim on which relief can be granted. The cause is before this court upon an appeal as a matter of right.

Edward C. Brown, pro se. Anthony J. Celebrezze, Jr., attorney general, and Alexander G. Thomas, for appellee.

We affirm the judgment of the court of appeals. Petitioner has no cause of action either by writ of habeas corpus ad prosequendum or writ of habeas corpus ad subjiciendum. The former issues to bring a prisoner before a court to prosecute in a jurisdiction other than where he is imprisoned and has no application in this case. The latter issues to inquire into illegal restraint of liberty. Neither will issue simply to grant a new first appeal as of right.

This does not leave a person claiming denial of effective assistance of appellate counsel without an adequate remedy. The claim is based on constitutional guarantees. Therefore, it may be appealed as of right to this court under Section 2(B)( 2)(a)(iii) of Article IV of the Ohio Constitution, to be dealt with as prescribed in Section 3(B), Rule II of the Rules of Practice of the Supreme Court of Ohio. We deem this an adequate remedy at law, which precludes issuance of the writ of habeas corpus. In re Hunt (1976), 46 Ohio St.2d 378, 75 O.O. 2d 450, 348 N.E.2d 727.

Judgment affirmed.


Summaries of

In re Petition of Brown

Supreme Court of Ohio
Mar 7, 1990
49 Ohio St. 3d 222 (Ohio 1990)
Case details for

In re Petition of Brown

Case Details


Court:Supreme Court of Ohio

Date published: Mar 7, 1990


49 Ohio St. 3d 222 (Ohio 1990)
551 N.E.2d 954

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