Opinion
No. 86-1540
Decided December 2, 1987.
Habeas corpus — Failure to exhaust post-conviction remedies is grounds for denial of writ.
APPEAL from the Court of Appeals for Ross County.
Appellant, Robert Gerhart, is incarcerated in the Chillicothe Correctional Institute. Appellee, Arthur Tate, Jr., is superintendent of that institution.
In 1983, appellant was convicted in the Court of Common Pleas of Summit County of two counts of rape and one count of gross sexual imposition involving his nine-year-old stepdaughter. The Court of Appeals for Summit County affirmed. State v. Gerhart (Jan. 25, 1984), Summit App. Nos. 11270 and 11279, unreported.
On April 23, 1986, appellant filed a petition for a writ of habeas corpus in the Court of Appeals for Ross County in which he attacked his conviction based on the jurisdiction of the Court of Common Pleas of Summit County. The court of appeals dismissed the petition.
The cause is now before this court upon an appeal as of right.
Robert Gerhart, pro se. Anthony J. Celebrezze, Jr., attorney general, and Alexander G. Thomas, for appellee.
The court of appeals dismissed for failure to state a claim upon which relief can be granted, apparently on the theory that appellant has an adequate remedy of law by appeal, delayed appeal, or post-conviction relief under R.C. 2953.21 to 2953.23. We affirm on the basis of Noble v. McMaken (1976), 45 Ohio St.2d 236, 74 O.O. 2d 379, 344 N.E.2d 129, in which this court held "`that the availability of the post-conviction remedies provided by Sections 2953.21 to 2953.24, inclusive, Revised Code, is ground for denial of' a writ of habeas corpus," citing Freeman v. Maxwell (1965), 4 Ohio St.2d 4, 33 O.O. 2d 2, 210 N.E.2d 885, certiorari denied (1966), 382 U.S. 1017. Here, appellant offered no evidence of having exhausted his post-conviction remedies.
The judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.