[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as Dailey v. Wainwright , Slip Opinion No. 2020-Ohio-4519.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O

. 2020-O HIO -4519

D AILEY , A PPELLANT , v . W AINWRIGHT , W ARDEN , A PPELLEE

. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as Dailey v. Wainwright , Slip Opinion No. 2020-Ohio-4519.] Habeas corpus—Inmate unsuccessfully rais ed same arguments in at least two previous habeas proceedings—Court of appeals’ dismissal of petition affirmed. (No. 2020-0157—Submitted June 2, 2020— Decided September 23, 202 0.)

A PPEAL from the Court of Appeals fo r Marion County, No. 9-19-72.

__________________ Per Curiam. {¶ 1} Appellant, James Dailey, appeals the Third District Court of Ap peals’ judgment dismissing his habeas corpus petition against appellee , Lyneal Wainwright, warden of the Mari on Correctional Institution (“MCI ”). We affirm.

Factual Background {¶ 2} Dailey is an inmate at MCI. In 1984, he was convicted of vario us criminal offenses and sentenced to a total of 5 to 15 years’ im prisonment. DaileyS UPREME C OURT OF O HIO

2 was released on parole in 1990, but his parole was revoked in 1 991 after he committed new offenses. Dailey was sentenced to 2 to 10 years’ imprisonment for the offenses he committed while on parole. Under former R.C. 2 929.41(B), Dailey’s sentence for the new offenses was required to be serve d consecutively to his prior sentence, increasing hi s maximum aggregate sentence t o 25 years. 1 {¶ 3} Dailey was released on parole again in February 1993. Later th at year, he was convicted of new offenses and sentenced to 2 to 5 years’ imprisonment. Dailey alleges that under former R.C. 2929.41(B), his maximum a ggregate sentence at that time was 30 years, expiring in 2014. {¶ 4} Over the next 14 years, Dailey wa s paroled twice more, only to have his parole revoked each time f or committing additional offenses . Dailey was sentenced to 5-year prison term s for convictions in 2000 and 20 07. The judgment

entries for those convictions wer e silent as to whether Dailey was to serve his sentences concurrently with or consecutively to the unexpired s entences for which he had been on parole. And before his 2000 convictions, the re levant language of former R.C. 2929.41(B) relating to consecutive sentences had be en repealed. See Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, 7502-7504. Bu t in 2000 and 2007, Dailey was convicted of, among other crimes, failure to c omply with the order or signal of a police officer, in violation of R.C. 2921. 331. At those times, R.C. 2921.331(D) required that any sentence imposed for failure to comply be served “consecutively to any other prison term or mandatory pri son term imposed upon the offender.” Sub.H.B. No. 29, 148 Ohio Laws, Part I, 36 7, 368; Am.Sub.S.B. No. 123, 149 Ohio Laws, Part II, 2467, 2545.

1. At the time of Dailey’s 1991 and 1993 convictions, R.C. 292 9.41(B)(3) provided: “A sentence of imprisonment shall be served consecutively to any other sent ence of imprisonment, in the following cases: * * * When it is imposed for a new felony comm itted by a probationer, parolee, or escapee.” Am.Sub.S.B. No. 258, 143 Ohio Laws, Part I, 1307, 14 38; Am.Sub.H.B. No. 561, 144 Ohio Laws, Part IV, 5911, 5912.January Term, 2020

3 {¶ 5} In 2018, Dailey filed in the Third District a petition for a wr it of habeas corpus against Wainwright, alleging that his maximum agg regate sentence had expired in 2014 . The T hird District dismissed the pe tition, holding that Dailey had failed to attach all his relevant commitment papers as requ ired by R.C. 2725.04(D) and that his claims were barred by res judicata. Th is court affirmed the dismissal under R.C. 2725.04(D), without reaching the res judic ata issue. Dailey v. Wainwright , 156 Ohio St.3d 510, 2019-Ohio-2064, 129 N.E.3d 444, ¶ 7. {¶ 6} In October 2019, Dailey commenced t his action in the Third Dist rict, again seeking a writ of habeas corpus on the basis that his max imum aggregate sentence had expired. Dailey argues that because of the 1996 r epeal of former R.C. 2929.41(B), the five-year sentences imposed for his 2000 and 20 07 convictions were to be served concurrently w ith the sentences he had resume d serving following his parole revocations. Therefore, Dailey asserts, h e should have been released from prison in 2014 and Wai nwright is holding him unla wfully at MCI. {¶ 7} Wainwright filed a motion to dismiss under Civ.R. 12(B)(6) and/ or for summary judgment under Civ.R. 56(C), which Dailey opposed. In support of summary judgment, Wainwright argued that res judicata barred Da iley’s petition. To support his res judicata argument, Wainwright first relied o n a wrongfulimprisonment action that Dailey had pursued against the Ohio De partment of Rehabilitation and Correction (“ODRC”) in the Ohio Court of Cla ims. In that case, Dailey alleged, as in this case, that he was confined unlawfull y because his maximum aggregate sentence expired in 2014. The Tenth District affirmed summary judgment in ODRC’s favor , holding that the mandatory co nsecutivesentencing provisions in R.C. 2921.331(D) applied to Dailey’s 2 000 and 2007

convictions. Dailey v. Ohio Dept. of Rehab. & Corr. , 10th Dist. Franklin No. 18AP-21, 2018-Ohio-3500, ¶ 19-21, appeal not accepted , 154 Ohio St.3d 1482, 2019-Ohio-173, 114 N.E.3d 1208. Thus, the court concluded that Dailey’s

sentence does not e xpire until June 8, 2023. Id. at ¶ 19.S UPREME C OURT OF O HIO

4 {¶ 8} Wainwright also argued that Dailey’s petition is barred by res judicata because it is a successive habeas petition. Relying on the aff idavit Dailey had filed with this habeas petition, Wainwr ight noted that Dailey had pre viously filed multiple habeas petitions, including his most recent petition i n 2018. And because Dailey raised the same arguments in those prior petitions, Wain wright argued, res judicata bars this petition. {¶ 9} The Third District granted Wainw right’s motion and dismissed th e action. The Third District f ound that habeas corpus does not l ie, because Dailey’s maximum aggregate sentence will not expire until June 2023. Th e Third District further found Dailey’s petition barred by res judicata as a suc cessive habeas petition. {¶ 10} Dailey has timely appealed to this court as of right.

Legal Analysis {¶ 11} The Third District did not state whether it was granting Wainwright’s motion to dismiss under Civ.R. 12(B)(6) or his alt ernative summaryjudgment motion under Civ.R. 56(C) . We presume, however, that the Third District granted summary judgment because Wainwright’s motion relied on evidence outside the pleadings and the Th ird District considered that ev idence. We review de novo a decision to grant summary judgment. Doe v. Shaffer , 90 Ohio St.3d 388, 390, 738 N.E.2d 1243 (2000). {¶ 12} The Third District properly granted summary judgment on res judicata grounds. Under the doctr ine of res judicata, “a final judgment or decree rendered on the merits by a court of competent jurisdiction is a complete bar to any subsequent action on the same c laim between the same parties or those in privity

with them.” Brooks v. Kelly , 144 Ohio St.3d 322, 2015-Ohio-2805, 43 N.E.3d 385, ¶ 7. Res judicata bars a successive habeas corpus petition whe n the petitioner either

raised the same issues or could ha ve raised them in the previou s habeas action. Id.January Term, 2020

5 at ¶ 8; Bevins v. Richard , 144 Ohio St.3d 54, 2015-Ohio-2832, 40 N.E.3d 1108, ¶ 4. {¶ 13} Noting that Dailey had identif ied in his R.C. 2969.25 affidavit multiple habeas actions he had previously filed, the Third Dist rict found that Dailey’s habeas petition is a s uccessive petition barred by res judicata. In 2014, Dailey unsuccessfully sought a writ of habeas corpus on the bas is that his maximum aggregate sentence had expired—th e same argument he raises in t his action. The court dismissed Dailey’s petition on the merits. Dailey then f iled a successive habeas petition in 2015, raising the same arguments. The court also dismissed that petition on the merits. Thus, Dailey has lost on the merits in at least two previous habeas proceedings in which he raised the same arguments he ass erts in this action.

The Third District was therefore correct to dismiss Dailey’s pe tition as a successive habeas petition barred by res judicata. {¶ 14} Because Dailey’s habeas corpus petition is barred by res judica ta, we

need not address the Third Dist rict’s other reasons for grantin g summary judgment. For the foregoing reasons, we af firm the Third District’s judgm ent.

Judgment affirmed.

O’C ONNOR , C.J., and K ENNEDY , F RENCH , F ISCHER , D E W INE , D ONNELLY , and S TEWART , JJ., concur.

_________________ James Dailey, pro se. Dave Yost, Attorney General, and Maura O’Neill Jaite, Assistan t Attorney General, for appellee.

_________________