Opinion
No. 2011–0546.
2011-09-1
McCLELLAN, Appellant,v.MACK, Warden, Appellee.
James McClellan, pro se.Michael DeWine, Attorney General, and Gene D. Park, Assistant Attorney General, for appellee.
James McClellan, pro se.Michael DeWine, Attorney General, and Gene D. Park, Assistant Attorney General, for appellee.
[Ohio St.3d 504] {¶ 1} We affirm the judgment dismissing the petition of appellant, James McClellan, for a writ of habeas corpus to compel his immediate release from prison.
{¶ 2} McClellan's claim that res judicata barred the relitigation of the propriety of a traffic stop that led to a search of his vehicle and the seizure of evidence used by the state to prosecute him is not cognizable in habeas corpus. “[R]es judicata is not an appropriate basis for extraordinary relief, because ‘res judicata does not divest a trial court of jurisdiction to decide its applicability, and the denial of this defense by the trial court can be adequately challenged by post-judgment appeal.’ ” [Ohio St.3d 505] Smith v. Voorhies, 119 Ohio St.3d 345, 2008-Ohio-4479, 894 N.E.2d 44, ¶ 9, quoting State ex rel. Nationwide Mut. Ins. Co. v. Henson, 96 Ohio St.3d 33, 2002-Ohio-2851, 770 N.E.2d 580, ¶ 11.
{¶ 3} Moreover, McClellan could have raised this claim in his direct appeal. He did not. State v. McClellan, Allen App. No. 1–09–21, 2010-Ohio-314, 2010 WL 338205. Thus, res judicata bars raising it here. Smith at ¶ 11. And the mere fact that he has already unsuccessfully invoked his appellate remedy does not thereby entitle him to the requested extraordinary
relief in habeas corpus. Everett v. Eberlin, 114 Ohio St.3d 199, 2007-Ohio-3832, 870 N.E.2d 1190, ¶ 6.
{¶ 4} Therefore, the court of appeals correctly dismissed McClellan's petition for a writ of habeas corpus, and we affirm that judgment.
Judgment affirmed.
O'CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O'DONNELL, LANZINGER, CUPP, and McGEE BROWN, JJ., concur.