Opinion
No. 38565
Decided May 27, 1964.
Habeas corpus — Not available to determine questions reviewable on appeal — Competency of counsel — Right to bill of exceptions — Failure to provide counsel to prosecute appeal.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. Petitioner, James W. Vaughn, was indicted by the Grand Jury of Hamilton County in april 1958 for maliciously breaking and entering a financial institution and armed robbery. Counsel was appointed to represent him, and after trial to a jury he was found guilty on both counts. A motion for a new trial was overruled. On October 28, 1958, petitioner was sentenced to the Ohio Penitentiary, where he was admitted on October 31, 1958.
In August 1959, petitioner filed his notice of appeal, assignment of errors and statement of facts in the Court of Appeals of the First Appellate District and a copy of the notice of appeal in the Court of Common Pleas. Apparently, he also filed a motion for a bill of exceptions in the Court of Common Pleas at the same time, inasmuch as the Court of Common Pleas denied such motion on September 22, 1959. On November 18, 1959, petitioner's motion for leave was denied by the Court of Appeals, his appeal was dismissed by the Supreme Court of Ohio on January 13, 1960, and the United States Supreme Court denied his petition for a writ of certiorari in 1960.
Mr. James W. Vaughn, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
Petitioner bases his present action in habeas corpus, first, on the ground that his trial counsel was incompetent, second, on the fact that he was denied a bill of exceptions by the trial court, and, third, on the claim that the Court of Appeals refused to appoint counsel to represent him on his appeal.
Questions as to competency of counsel are not cognizable in habeas corpus but must be raised on appeal. Jackson v. Maxwell, Warden, 174 Ohio St. 32; and Gallagher v. Maxwell, Warden, 175 Ohio St. 440.
Next, petitioner contends that he was denied equal protection because of the refusal of the trial court to furnish him the bill of exceptions. Petitioner filed his motion for a bill of exceptions in the trial court. His motion was denied. Petitioner had the right to appeal from such denial but failed to do so. State v. Frato, 168 Ohio St. 281. The refusal of a bill of exceptions is a question which must be prosecuted by appeal and is not cognizable in habeas corpus. Tinsley v. Maxwell, Warden, 176 Ohio St. 185.
Finally, petitioner urges that the refusal of the Court of Appeals to provide him with counsel to prosecute his appeal denied him the equal protection of the law. McCoy v. Maxwell, Warden, 176 Ohio St. 249. There is no evidence that such request was ever made.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.