[Cite as Alls v. Miller, 2016-Ohio-2793.] STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ex rel. ) CASE NO. 15 BE 0043 JAMES M. ALLS ) ) PETITIONER ) ) OPINION AND VS. ) JUDGMENT ENTRY ) MICHELE MILLER, WARDEN ) ) RESPONDENT )
CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus
JUDGMENT: Dismissed.
APPEARANCES:
For Petitioner: James M. Alls, Pro se #A648-635 Belmont Correctional Institution P.O. Box 540 St. Clairsville, Ohio 43950
For Respondent: Atty. Mike DeWine Attorney General of Ohio Atty. Mary Anne Reese Assistant Attorney General Criminal Justice Section 441 Vine Street, Suite 1600 Cincinnati, Ohio 45202
JUDGES:
Hon. Cheryl L. Waite Hon. Mary DeGenaro Hon. Carol Ann Robb Dated: April 25, 2016 [Cite as Alls v. Miller, 2016-Ohio-2793.] PER CURIAM.
{¶1} Petitioner James M. Alls is an inmate at the Belmont Correctional
Institution in Belmont County, Ohio. He has filed a petition for writ of habeas corpus
against Michele Miller, Warden of the institution where he is incarcerated.
Respondent has filed a motion for summary judgment seeking dismissal of the
petition. Respondent’s motion is sustained and the petition is dismissed.
Background
{¶2} In February of 2012, Petitioner pleaded guilty in Case No. 11CR-02-
1081 in Franklin County Court of Common Pleas to one count of aggravated robbery,
a first-degree felony pursuant to R.C. 2911.01. He also pleaded guilty to one count
of felonious assault, a second-degree felony under R.C. 2903.11. Other charges
were dismissed. The same day, on joint recommendation from both defense counsel
and the prosecutor, the court sentenced Petitioner to an aggregate sentence of
fifteen years of imprisonment: nine for aggravated robbery and six for felonious
assault. This sentence was to run consecutively, and consecutively with an earlier
four-year sentence imposed on Petitioner in Washington County for drug trafficking.
Petitioner was notified as to his period of post-release control. (2/14/12 J.E.)
{¶3} While Petitioner filed a pro se appeal, it was dismissed by the Tenth
Appellate District for failure to prosecute. (4/19/12 Order, Tenth District Case No.
12AP-170.) More than two years later, Petitioner sought a delayed appeal from the
court, which was denied. (6/16/14 Order.) His attempt to appeal this denial to the
Ohio Supreme Court failed when the Court declined to accept jurisdiction. (10/22/14
Order, Ohio Supreme Court.) -2-
{¶4} In May of 2015, Petitioner filed a federal petition seeking habeas corpus
pursuant to 28 U.S.C. §2254. The matter was filed in the Southern District of Ohio
and assigned Case No. 2:15CV02323. In this petition, he attacked the Ohio
appellate court’s decision to deny his request for delayed appeal. This petition was
dismissed the following month.
{¶5} On July 8, 2015, Petitioner filed his present petition with this Court. In
it, he appears to allege that he is being held under a void sentencing order and that
Ohio Courts of Common Pleas have no jurisdiction over felony criminal cases. On
August 3, 2015, Respondent filed a motion seeking summary judgment.
Analysis
{¶6} R.C. 2725.01 provides:
Whoever is unlawfully restrained of his liberty, or entitled to the custody
of another, of which custody such person is unlawfully deprived, may
prosecute a writ of habeas corpus, to inquire into the cause of such
imprisonment, restraint, or deprivation.
{¶7} The writ of habeas corpus is an extraordinary writ and will only be
issued in certain circumstances of unlawful restraint of a person’s liberty where there
is no adequate legal remedy of law, such as a direct appeal or postconviction relief.
In re Pianowski, 7th Dist. No. 03 MA 16, 2003-Ohio-3881, ¶ 3, citing State ex rel.
Pirman v. Money, 69 Ohio St.3d 591, 593, 635 N.E.2d 26 (1994). The burden is on
the Petitioner to establish a right to release. Halleck v. Koloski, 4 Ohio St.2d 76, 77,
212 N.E.2d 601 (1965). -3-
{¶8} Respondent has requested summary judgment in the matter. Summary
judgment is governed by Civ.R. 56(C). Pursuant to Civ.R. 56(C), a trial court shall
grant a motion for summary judgment if, after construing the evidence in a light most
favorable to the nonmoving party, the court finds an absence of a genuine issue of
material fact and that reasonable minds can reach only one conclusion, that the
moving party is entitled to judgment as a matter of law. State ex rel. Sweeting v.
Starr, 7th Dist. No. 14 NO 412, 2014-Ohio-5505, ¶ 3, citing State ex rel. Parsons v.
Fleming, 68 Ohio St.3d 509, 511, 628 N.E.2d 1377 (1994). Additionally, if the
petition fails to meet the requirements of a properly filed petition for writ of habeas
corpus, or fails to state a facially viable claim, it may be dismissed on motion by the
respondent or sua sponte by the court. Flora v. N. Cent. Correctional Inst., 7th Dist.
No. 04 BE 51, 2005-Ohio-2383, ¶ 5.
{¶9} When a civil action is filed against a governmental entity or employee,
R.C. 2969.25(A) requires the petitioner to file an affidavit with the petition describing
all civil actions and appeals he or she has filed in state or federal court within the past
five years. Compliance with R.C. 2969.25(A) is mandatory, and failure to satisfy the
statutory requirements is grounds for dismissal. State ex rel. Washington v. Ohio
Adult Parole Auth., 87 Ohio St.3d 258, 259, 719 N.E.2d 544 (1999). While Petitioner
did list certain previously filed actions in his request for the writ, Respondent
accurately points out that Petitioner failed to include his earlier petition for writ of
habeas corpus with the federal court. That petition was dismissed one day after
Petitioner filed for voluntary dismissal of the petition. Regardless, and as noted by -4-
Respondent, failure to comply with the provisions of R.C. 2969.25(A) requires
dismissal of the petition. Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533,
797 N.E.2d 982; State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 422,
696 N.E.2d 594 (1998); Smith v. Buchanan, 7th Dist. No. 13 NO 407, 2014-Ohio-359,
Clark v. Miller, 7th Dist. No. 13 BE 13, 2013-Ohio-2958; Womack v. Warden of
Belmont Correctional Inst., 7th Dist. No. 04 BE 58, 2005-Ohio-1344.
{¶10} In addition, the availability of a legal remedy precludes an action in
habeas corpus. State ex rel. Massie v. Rogers, 77 Ohio St.3d 449, 450, 674 N.E.2d
1383 (1997). Petitioner did not pursue the direct appeal he filed after conviction and
sentence. It is well settled that sentencing errors cannot be attacked through an
action in habeas corpus. Id.; Roberts v. Knab, 131 Ohio St.3d 60, 2012-Ohio-56, 960
N.E.2d 457, ¶ 1. Habeas corpus is not the appropriate vehicle for reviewing
allegations of sentencing errors when that sentence was made by a court of proper
jurisdiction. Wayne v. Bobby, 7th Dist. No.
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[Cite as Alls v. Miller, 2016-Ohio-2793.] STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ex rel. ) CASE NO. 15 BE 0043 JAMES M. ALLS ) ) PETITIONER ) ) OPINION AND VS. ) JUDGMENT ENTRY ) MICHELE MILLER, WARDEN ) ) RESPONDENT )
CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus
JUDGMENT: Dismissed.
APPEARANCES:
For Petitioner: James M. Alls, Pro se #A648-635 Belmont Correctional Institution P.O. Box 540 St. Clairsville, Ohio 43950
For Respondent: Atty. Mike DeWine Attorney General of Ohio Atty. Mary Anne Reese Assistant Attorney General Criminal Justice Section 441 Vine Street, Suite 1600 Cincinnati, Ohio 45202
JUDGES:
Hon. Cheryl L. Waite Hon. Mary DeGenaro Hon. Carol Ann Robb Dated: April 25, 2016 [Cite as Alls v. Miller, 2016-Ohio-2793.] PER CURIAM.
{¶1} Petitioner James M. Alls is an inmate at the Belmont Correctional
Institution in Belmont County, Ohio. He has filed a petition for writ of habeas corpus
against Michele Miller, Warden of the institution where he is incarcerated.
Respondent has filed a motion for summary judgment seeking dismissal of the
petition. Respondent’s motion is sustained and the petition is dismissed.
Background
{¶2} In February of 2012, Petitioner pleaded guilty in Case No. 11CR-02-
1081 in Franklin County Court of Common Pleas to one count of aggravated robbery,
a first-degree felony pursuant to R.C. 2911.01. He also pleaded guilty to one count
of felonious assault, a second-degree felony under R.C. 2903.11. Other charges
were dismissed. The same day, on joint recommendation from both defense counsel
and the prosecutor, the court sentenced Petitioner to an aggregate sentence of
fifteen years of imprisonment: nine for aggravated robbery and six for felonious
assault. This sentence was to run consecutively, and consecutively with an earlier
four-year sentence imposed on Petitioner in Washington County for drug trafficking.
Petitioner was notified as to his period of post-release control. (2/14/12 J.E.)
{¶3} While Petitioner filed a pro se appeal, it was dismissed by the Tenth
Appellate District for failure to prosecute. (4/19/12 Order, Tenth District Case No.
12AP-170.) More than two years later, Petitioner sought a delayed appeal from the
court, which was denied. (6/16/14 Order.) His attempt to appeal this denial to the
Ohio Supreme Court failed when the Court declined to accept jurisdiction. (10/22/14
Order, Ohio Supreme Court.) -2-
{¶4} In May of 2015, Petitioner filed a federal petition seeking habeas corpus
pursuant to 28 U.S.C. §2254. The matter was filed in the Southern District of Ohio
and assigned Case No. 2:15CV02323. In this petition, he attacked the Ohio
appellate court’s decision to deny his request for delayed appeal. This petition was
dismissed the following month.
{¶5} On July 8, 2015, Petitioner filed his present petition with this Court. In
it, he appears to allege that he is being held under a void sentencing order and that
Ohio Courts of Common Pleas have no jurisdiction over felony criminal cases. On
August 3, 2015, Respondent filed a motion seeking summary judgment.
Analysis
{¶6} R.C. 2725.01 provides:
Whoever is unlawfully restrained of his liberty, or entitled to the custody
of another, of which custody such person is unlawfully deprived, may
prosecute a writ of habeas corpus, to inquire into the cause of such
imprisonment, restraint, or deprivation.
{¶7} The writ of habeas corpus is an extraordinary writ and will only be
issued in certain circumstances of unlawful restraint of a person’s liberty where there
is no adequate legal remedy of law, such as a direct appeal or postconviction relief.
In re Pianowski, 7th Dist. No. 03 MA 16, 2003-Ohio-3881, ¶ 3, citing State ex rel.
Pirman v. Money, 69 Ohio St.3d 591, 593, 635 N.E.2d 26 (1994). The burden is on
the Petitioner to establish a right to release. Halleck v. Koloski, 4 Ohio St.2d 76, 77,
212 N.E.2d 601 (1965). -3-
{¶8} Respondent has requested summary judgment in the matter. Summary
judgment is governed by Civ.R. 56(C). Pursuant to Civ.R. 56(C), a trial court shall
grant a motion for summary judgment if, after construing the evidence in a light most
favorable to the nonmoving party, the court finds an absence of a genuine issue of
material fact and that reasonable minds can reach only one conclusion, that the
moving party is entitled to judgment as a matter of law. State ex rel. Sweeting v.
Starr, 7th Dist. No. 14 NO 412, 2014-Ohio-5505, ¶ 3, citing State ex rel. Parsons v.
Fleming, 68 Ohio St.3d 509, 511, 628 N.E.2d 1377 (1994). Additionally, if the
petition fails to meet the requirements of a properly filed petition for writ of habeas
corpus, or fails to state a facially viable claim, it may be dismissed on motion by the
respondent or sua sponte by the court. Flora v. N. Cent. Correctional Inst., 7th Dist.
No. 04 BE 51, 2005-Ohio-2383, ¶ 5.
{¶9} When a civil action is filed against a governmental entity or employee,
R.C. 2969.25(A) requires the petitioner to file an affidavit with the petition describing
all civil actions and appeals he or she has filed in state or federal court within the past
five years. Compliance with R.C. 2969.25(A) is mandatory, and failure to satisfy the
statutory requirements is grounds for dismissal. State ex rel. Washington v. Ohio
Adult Parole Auth., 87 Ohio St.3d 258, 259, 719 N.E.2d 544 (1999). While Petitioner
did list certain previously filed actions in his request for the writ, Respondent
accurately points out that Petitioner failed to include his earlier petition for writ of
habeas corpus with the federal court. That petition was dismissed one day after
Petitioner filed for voluntary dismissal of the petition. Regardless, and as noted by -4-
Respondent, failure to comply with the provisions of R.C. 2969.25(A) requires
dismissal of the petition. Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533,
797 N.E.2d 982; State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 422,
696 N.E.2d 594 (1998); Smith v. Buchanan, 7th Dist. No. 13 NO 407, 2014-Ohio-359,
Clark v. Miller, 7th Dist. No. 13 BE 13, 2013-Ohio-2958; Womack v. Warden of
Belmont Correctional Inst., 7th Dist. No. 04 BE 58, 2005-Ohio-1344.
{¶10} In addition, the availability of a legal remedy precludes an action in
habeas corpus. State ex rel. Massie v. Rogers, 77 Ohio St.3d 449, 450, 674 N.E.2d
1383 (1997). Petitioner did not pursue the direct appeal he filed after conviction and
sentence. It is well settled that sentencing errors cannot be attacked through an
action in habeas corpus. Id.; Roberts v. Knab, 131 Ohio St.3d 60, 2012-Ohio-56, 960
N.E.2d 457, ¶ 1. Habeas corpus is not the appropriate vehicle for reviewing
allegations of sentencing errors when that sentence was made by a court of proper
jurisdiction. Wayne v. Bobby, 7th Dist. No. 02 BE 72, 2003-Ohio-3882, ¶ 14, citing
R.C. 2725.05; Majoros v. Collins, 64 Ohio St.3d 442, 596 N.E.2d 1038 (1992); State
ex rel. Wynn v. Baker, 61 Ohio St.3d 464, 575 N.E.2d 208 (1991). Where direct
appeal and postconviction relief are available to challenge a sentence, a habeas
petition may properly be dismissed. Rogers, supra.
{¶11} Petitioner generally (and confusingly) argues that he is being held
pursuant to a void sentencing entry and that the courts of common pleas have no
jurisdiction over felony criminal cases. To the extent that he appears to allege errors
in his sentencing entry, these should have been raised by him in his abandoned -5-
appeal and are not cognizable in habeas corpus. Childers v. Wingard, 83 Ohio St.3d
427, 700 N.E.2d 588 (1998).
{¶12} We further note that Petitioner’s confused and confusing assertion that
the trial court had no jurisdiction over his case is also meritless. It is well settled law
that Ohio courts of common pleas have original jurisdiction to enter convictions and
sentences of felonies committed by adults. See e.g. R.C. 2931.03; State ex rel. Pruitt
v. Donnelly, 129 Ohio St.3d 498, 2011-Ohio-4203, 954 N.E.2d 117.
{¶13} While Respondent raises additional arguments in support of her
argument in summary judgment, it is apparent that for all of the above reasons,
habeas is not warranted in this matter.
Conclusion
{¶14} Because Petitioner failed to attach a complete affidavit of all prior civil
actions filed by him as required by statute and because his claimed sentencing error
is not reviewable in habeas corpus, the petition seeking habeas corpus is hereby
dismissed.
{¶15} Costs taxed against Petitioner. Final order. Clerk to serve notice as
provided by the Civil Rules.
Waite, J., concurs.
DeGenaro, J., concurs.
Robb, J., concurs.