Marshall v. Lazaroff

674 N.E.2d 1378, 77 Ohio St. 3d 443

• Court: Ohio Supreme Court
• Decided: February 19, 1997
• Docket: No. 96-1933
• Status: Published

Opinion

Per Curiam.

Marshall asserts in his propositions of law that the court of appeals erred in dismissing his petition and in not holding an evidentiary hearing. But the court of appeals properly held that habeas corpus is not available to challenge either the validity or sufficiency of an indictment. State ex rel. Wilcox v. Seidner (1996), 76 Ohio St.3d 412, 415, 667 N.E.2d 1220, 1222; Luna v. Russell (1994), 70 Ohio St.3d 561, 562, 639 N.E.2d 1168, 1169. Similarly, allegations of fraud on the part of the prosecution relating to an indictment are not cognizable in habeas corpus. State ex rel. Justice v. McMackin (1990), 53 Ohio St.3d 72, 73, 558 N.E.2d 1183, 1183-1184. Marshall could have raised these claims on direct appeal of his criminal conviction. State ex rel. Simpson v. Lazaroff (1996), 75 Ohio St.3d 571, 664 N.E.2d 937.

Furthermore, Marshall attacks the validity only of his drug trafficking sentences. He does not challenge the validity of his sentence in Cuyahoga County Common Pleas Court case No. CR287104, which is referenced in the entry attached to his petition. Marshall also did not allege that the sentence in that case had expired at the time he sought extraordinary relief in habeas corpus. Swiger v. Seidner (1996), 74 Ohio St.3d 685, 687, 660 N.E.2d 1214, 1216 (“Where a petitioner is incarcerated for several crimes, the fact that the sentencing court may have lacked jurisdiction to sentence him on one of the crimes does not warrant his release in habeas corpus.”).

For the foregoing reasons, the court of appeals did not err in granting Lazaroffs Civ.R. 12(B)(6) motion to dismiss the petition without holding an evidentiary hearing. Accordingly, we affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur.