Gray v. Bowen

2019 Ohio 501

• Court: Ohio Court of Appeals
• Decided: February 1, 2019
• Docket: 18 MA 0044
• Status: Published

Opinion

[Cite as Gray v. Bowen, 2019-Ohio-501.]

IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY

EX REL. RICARDO GRAY,

Petitioner,

v.

WARDEN RICHARD A. BOWEN JR.,

Respondent.

OPINION AND JUDGMENT ENTRY Case No. 18 MA 0044

Writ of Habeas Corpus

BEFORE: Cheryl L. Waite, Gene Donofrio, Kathleen Bartlett, Judges.

JUDGMENT: Dismissed.

Ricardo Gray, Pro se, #368-431, Ohio State Penitentiary, 878 Coitsville-Hubbard Road, Youngstown, Ohio 44505

Atty. Dave Yost, Attorney General of Ohio and Atty. Stephanie L. Watson, Principal Assistant Attorney General, 150 East Gay Street, 16th Floor, Columbus, Ohio 43215-6001, for Respondent.

Dated: February 1, 2019

PER CURIAM. –2–

{¶1} Petitioner Ricardo Gray, proceeding on his own behalf, has filed a

complaint for a writ of habeas corpus claiming his conviction for murder and felonious

assault with attendant firearm specifications was obtained by fraud; specifically, that the

two key witnesses who testified at his jury trial have now recanted and identified

someone other than him as the perpetrator. The complaint names as Respondent

Warden Richard A. Bowen Jr, Warden of the Ohio State Penitentiary in Youngstown,

Ohio, where Petitioner is presently incarcerated. The Ohio Attorney General’s office,

representing Respondent, has filed a motion to dismiss the petition.

{¶2} The salient facts leading to Petitioner’s conviction and sentence are set

forth in State v. Gray, 8th Dist. No. 76170, 2000 WL 1036229 (July 27, 2000). Through

the filing of numerous motions for new trial and/or petitions for postconviction relief,

Petitioner has raised the issue of recanted testimony by two of the state’s witnesses in

the Cuyahoga County Common Pleas Court. That court denied Petitioner’s initial

motion/petition on substantive grounds and denied Petitioner’s successive

motions/petitions thereafter on the grounds of res judicata. The Eighth District Court of

Appeals affirmed those decisions and the Ohio Supreme Court declined review. See

State v. Gray, 90 Ohio St.3d 1469, 738 N.E.2d 381 (2000); State v. Gray, 8th Dist. No.

76170, 2001 WL 1134870 (Sept. 17, 2001); State v. Gray, 8th Dist. No. 76170, 2002-

Ohio-1093; State v. Gray, 8th Dist. No. 81474, 2003-Ohio-436; State v. Gray, 8th Dist.

No. 82841, 2003-Ohio-6643, appeal not accepted for review, 102 Ohio St.3d 1460,

2004-Ohio-2569; 809 N.E.2d 33; State v. Gray, 8th Dist. No. 83926, 2004-Ohio-5861;

and State v. Gray, 8th Dist. No. 84677, 2004-Ohio-7030.

Case No. 18 MA 0044 –3–

{¶3} Likewise, a federal court has upheld the state courts’ determination of res

judicata and added that Petitioner has not sufficiently demonstrated actual innocence.

Gray v. Hudson, N.D.Ohio No. 1:06CV1308, 2008 WL 1995362 (May 5, 2008).

{¶4} Petitioner now presents the same purported evidence in support of a writ

of habeas corpus before this Court. He attached to his complaint a sworn affidavit from

each person, in which they allege their original trial testimony was untrue.

{¶5} Habeas corpus is available only in extraordinary circumstances where

there is no adequate alternative legal remedy. Kemp v. Ishee, 7th Dist. No. 03-MA-182,

2004-Ohio-390, ¶ 4, citing State ex rel. Jackson v. McFaul, 72 Ohio St.3d 185, 186, 652

N.E.2d 746 (1995). Habeas is not meant for a retrial of the accused’s guilt or

innocence. Walker v. Maxwell, 1 Ohio St.2d 136, 137, 205 N.E.2d 394 (1965). Habeas

corpus is not available when the issue could have been raised on direct appeal. Ishee,

7th Dist. No. 03-MA-182 at ¶ 4, citing Luna v. Russell, 70 Ohio St.3d 561, 639 N.E.2d

1168 (1994). Further, “[w]here a Petitioner possessed the adequate legal remedies of

appeal and post-conviction to challenge his sentencing, a petition for habeas corpus

may properly be dismissed.” Womack v. Warden of Belmont Correctional Inst., 7th Dist.

No. 04 BE 58, 2005-Ohio-1344, ¶ 5, citing State ex rel. Massie v. Rogers, 77 Ohio St.3d

449, 450, 674 N.E.2d 1383 (1997).

{¶6} In turn, a Petitioner “may not use habeas corpus to obtain successive

appellate reviews of the same issue.” Wells v. Hudson, 113 Ohio St.3d 308, 2007-Ohio-

1955, 865 N.E.2d 46, ¶ 7, citing State ex rel. Rash v. Jackson, 102 Ohio St.3d 145,

2004-Ohio-2053, 807 N.E.2d 344.

Case No. 18 MA 0044 –4–

{¶7} As the Eighth District observed when it denied Petitioner’s attempt to

reassert his claims in a petition for a writ of prohibition on res judicata grounds,

“[b]ecause this court has already addressed the claims of perjured testimony and failure

to provide information about another suspect, the doctrine of res judicata bars any

further consideration, and Gray’s complaint for a writ of prohibition must fail.” State ex

rel. Gray v. McDonnell, 8th Dist. No. 106455, 2018-Ohio-692, ¶ 6.

{¶8} In this instance, although employing an alternative form of legal relief,

Petitioner’s claims remain the same. The substantive merits of his claims have already

been ruled upon by a trial court with appropriate subject matter jurisdiction. That

decision was reviewed and affirmed by the court of appeals where Petitioner had an

appeal as of right, and the Ohio Supreme Court, which exercises discretionary review,

has declined to accept Petitioner’s appeal. These same claims, now brought in a

petition for a writ of habeas corpus with this Court, are clearly barred under the doctrine

of res judicata. The record clearly reflects that Petitioner has yet to serve all of his

sentence.

{¶9} Accordingly, the Court grants Respondent’s motion to dismiss. Petition

dismissed. Final order. Costs taxed against Petitioner. Clerk to serve notice as

provided by the Civil Rules.

JUDGE CHERYL L. WAITE

JUDGE GENE DONOFRIO

JUDGE KATHLEEN BARTLETT

Case No. 18 MA 0044 –5–

Case No. 18 MA 0044