Billiter v. Banks
2012 Ohio 4556
Ohio Ct. App.2012Background
- Petitioner Fred Billiter, a prisoner at Noble Correctional Institution, filed a petition for writ of habeas corpus.
- Convictions from Tuscarawas County Court of Common Pleas (1999) include two counts of rape, one count of pandering obscenity involving a minor, and one count of gross sexual imposition.
- Sentence totaled 31 years (ten years per rape, eight for pandering, three for gross sexual imposition) to be served consecutively.
- Billiter argues rape and gross sexual imposition are allied offenses and that gross sexual imposition is a lesser-included offense, yielding a maximum term of 13 years.
- Respondent moves to dismiss arguing allied offenses are not cognizable in habeas and the claims are bar by res judicata; court agrees and dismisses the petition.
- Petitioner previously filed a habeas petition in the Fifth District which was denied on the merits; doctrine of res judicata applies to habeas petitions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are allied-offense sentencing claims cognizable in habeas corpus? | Billiter argues allied-offense theory invalidates part of his sentence. | Banks maintains allied-offense claims are not cognizable in habeas. | Dismissed; not cognizable in habeas. |
| Does res judicata bar Billiter's current petition? | Billiter contends new habeas petition should be entertained. | Banks asserts prior habeas petitions and available direct appeals bar the claim. | Dismissed under res judicata. |
| Are previously unraised sentencing/allied-offense issues cognizable via habeas when remedy via direct appeal exists? | Direct appeal could have addressed sentencing issues. | Adequate legal remedies exist; habeas not appropriate. | Dismissed; adequate remedies exist. |
Key Cases Cited
- In re Pianowski, 2003-Ohio-3881 (7th Dist. No. 03MA16 (Ohio 2003)) (habeas corpus available only when no adequate legal remedy)
- Pirman v. Money, 69 Ohio St.3d 591 (Ohio 1994) (adequate remedy at law; habeas not appropriate)
- Smith v. Bradshaw, 109 Ohio St.3d 50 (2006-Ohio-1829) (absence of jurisdiction; adequate remedy at law)
- Tucker v. Collins, 64 Ohio St.3d 77 (1992) (habeas when court lacked jurisdiction; otherwise not)
- Halleck v. Koloski, 4 Ohio St.2d 76 (1965) (burden on petitioner to show right to release)
- Yarbrough v. Maxwell, 174 Ohio St. 287 (1963) (jurisdictional challenges; remedy by appeal)
- Goeller v. Goeller, 103 Ohio St.3d 427 (2004-Ohio-5579) (habeas not available when adequate remedy exists)
- Wooton v. Brunsman, 112 Ohio St.3d 153 (2006-Ohio-6524) (res judicata applies to habeas petitions)
- Hudlin v. Alexander, 63 Ohio St.3d 153 (1992) (application of res judicata to habeas)
- Thomas v. Eberlin, 2008-Ohio-4663 (7th Dist. No. 08 BE 14) (habeas dismissed where adequate remedies available)