[Cite as Billman v. Smith, 2020-Ohio-1358.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
DAVID BILLMAN, : : Petitioner-Appellant, : Case No. 19CA18 : vs. : : DECISION AND SHELBIE SMITH, WARDEN, : JUDGMENT ENTRY : Respondent-Appellee. : _____________________________________________________________ APPEARANCES:
David Billman, Orient, Ohio, Appellant, pro se.
David Yost, Ohio Attorney General, and William H. Lamb, Assistant Attorney General, Cincinnati, Ohio, for Appellee. _____________________________________________________________
Smith, P.J.
{¶1} This is an appeal from two Pickaway County Common Pleas Court
decisions and entries. The first decision and entry denied Appellant’s petition for a
writ of habeas corpus for failure to state a claim. The second decision and entry
denied Appellant’s motion for reconsideration. Because, in a criminal context,
there is no authority for the filing of a motion for reconsideration of a final
judgment, such a motion is generally considered a legal nullity and thus, an order
denying such motion does not constitute a final, appealable order and this Court Pickaway App. No. 19CA18 2
lacks jurisdiction to review the related arguments on the merits.1 State v.
Campbell, 4th Dist. Adams No. 16CA1029, 2017-Ohio-4252, ¶ 8, 11 and 12.
Accordingly, to the extent Appellant is appealing the trial court’s denial of his
motion for reconsideration, his appeal is dismissed.
{¶2} Appellant raises four very lengthy assignments of error, however,
related to the trial court’s denial of his petition for a writ of habeas corpus. On
appeal, Appellant essentially contends 1) that the trial court erred in determining he
was not denied access to the courts, which he claims caused his motion for a
delayed appeal to the Supreme Court of Ohio to be denied; 2) that the trial court
erroneously determined his arguments regarding double jeopardy and the failure to
prove venue were barred by res judicata; 3) that the trial court erroneously
determined he did not meet the standard for habeas corpus relief; and 4) that the
trial court erroneously accepted “the state’s misdirection that the double jeopardy
issue is only about the indictment.”
{¶3} However, because we conclude Appellant’s current appeal fails on
procedural grounds as a result of his failure to comply with the filing requirements
of R.C. 2969.25(A), we must dismiss the appeal for lack of jurisdiction.
Furthermore, because we find Appellant’s petition fails on substantive grounds, we
1 Moreover, despite the fact that Appellant has represented he is appealing the trial court’s denial of his motion for reconsideration, none of his assigned errors on appeal relate to the denial of that motion. Pickaway App. No. 19CA18 3
cannot conclude that the trial court erred in granting Appellee’s Civ.R. 12(B)(6)
motion for dismissal for failure to state a claim. As such, the arguments raised by
Appellant on appeal are without merit. Accordingly, the appeal is dismissed.
FACTS AND PROCEDURAL HISTORY
{¶4} Because Appellant has not provided this Court with the entire criminal
record of this case, including the underlying criminal record from his convictions
in the Monroe County Court of Common Pleas, we take judicial notice of the facts
of this matter as set forth in his first, direct appeal, as follows:
Appellant and his wife, Mary Billman, are foster parents
working with Monroe County Child and Family Services. According
to testimony, the two live in Monroe County at 31143 Liberty Ridge
Rd., Wingett Run, Ohio 45789 and have lived there since 1994. A
total of seven children lived in the house under the care of the couple
at all periods relevant to this matter. In 2006 Appellant and his wife
accepted responsibility for Child X and Child Y, who had been
removed from the home of their biological father due to sexual abuse.
According to Appellant's wife, when the two children entered
Appellant's home, both had physical indications of sexual abuse.
Both children lived in Appellant's home from February of 2005 until
the present. Appellant resided in the family home until 2011, when Pickaway App. No. 19CA18 4
his wife asked him to leave. Appellant moved out on October 28,
2011, after his wife confronted him with the accusations of Child X
and Child Y, who told her that Appellant had been sexually abusing
Child Y the entire time she lived with him, and that he had just started
abusing Child X.
On October 28, 2011, after he left the house, Appellant called a
friend, David A. Preston, and announced: “I molested [Child Y].”
(Pretrial Motion Hrg. Tr., p. 46; Tr. Vol. III, p. 93.) Preston was
initially uncertain who was speaking because Appellant had not
identified himself. When Appellant identified himself, Preston asked
if he had a place to stay and offered to allow Appellant to stay the
night in his house. Appellant and Preston had been friends for more
than six years; they initially met through work near Cincinnati.
Although they met because of their work, the two bonded through
their Christian faith and regularly discussed religious issues. The two
men were both assistant pastors, but attended different non-
denominational churches. Neither man attended seminary or had
undertaken any formal program of religious or pastoral study. Each
man had been “ordained” by the pastor of his respective church.
Neither church is formally affiliated with any organized Christian Pickaway App. No. 19CA18 5
denomination. Appellant stayed with Preston for a brief period, but
eventually called the Monroe County Sheriff's Department and turned
himself in.
On November 17, 2011, Appellant was indicted on twelve
counts alleging abuse of both Child X and Child Y. The counts
included two instances of gross sexual imposition with regard to Child
X, who was then eight years old. The remaining ten counts involved
Child Y, who was then nine years old, and included two instances of
rape, two instances of attempted rape, and six instances of gross
sexual imposition. The charges as they related to Child X were
alleged to have occurred between January 1, 2011 and October 28,
2011. The charges as they related to Child Y were alleged to have
occurred between January 1, 2006 and October 28, 2011. The trial
court found both children competent to testify at trial and their
testimony, coupled with that of the various adults to whom Appellant
admitted his crimes, composed the bulk of the case against Appellant.
Although Appellant was originally charged with two counts of
gross sexual imposition involving Child X, her testimony at trial was
confused, and ultimately, she described a single incident. Child Y,
however, described Appellant touching and rubbing her vagina on ten Pickaway App. No. 19CA18 6
separate occasions in three different locations in the home: the living
room, her mother's bedroom, and another sister's room. Child Y also
described having been made to touch Appellant's genitals on six
occasions and revealed multiple instances when Appellant licked her
genitals. Child Y recounted three instances when Appellant placed
his penis, which she described as a “[s]oft-ish/hard-ish thing,” in her
mouth. (Tr. Vol.III, p. 71.) During two of these incidents, according
to Child Y, a “clear-ish” liquid went into her mouth, which she then
spit into the toilet. (Tr. Vol.III, p. 74.) According to Child Y, during
one of the three occasions there was no liquid. In the entirety of Child
Y's testimony she related nineteen separate encounters with Appellant
that could support gross sexual imposition charges. At least three and
possibly thirteen of those nineteen incidents involved conduct
constituting rape (oral and digital). Child Y said Appellant told her
not to tell anyone about the things he did “cause I could go to prison
for it.” (Tr. Vol. III, p. 74.)
Ten of the original twelve counts were submitted to the jury:
two counts of gross sexual imposition involving Child X; two counts
of rape involving Child Y; and six counts of gross sexual imposition
involving Child Y. The jury returned guilty verdicts on nine of the ten Pickaway App. No. 19CA18 7
counts. Appellant was acquitted of the second count of gross sexual
imposition involving Child X.
After sentencing, Appellant filed a motion for new trial based
on an audio recording made by his wife of the two girls. Appellant
argued that in the recording the girls suggested that they would recant
their testimony. The state responded with affidavits describing
conversations between Appellant and his wife that were recorded by
the facility in which Appellant was being held. The recorded
conversations between Appellant and his wife reflected that the two
had planned the best way to record the girls to undermine their
testimony. Appellant's wife told the girls that they would not have to
testify in court at the sentencing hearing if they made a tape for her.
The trial court concluded, without a hearing, that the recording offered
by Appellant was self-serving and not credible. The trial court
overruled Appellant's motion for new trial. Appellant filed timely
appeals of his conviction and sentence and of the ruling denying his
motion for new trial and the two appeals were consolidated.
State v. Billman, 7th Dist. Monroe Nos. 12MO3 and 12MO5, 2013-Ohio-5774, ¶ 2-
7. Pickaway App. No. 19CA18 8
{¶5} Appellant’s first, direct appeal to the Seventh District Court of Appeals
resulted in a complete affirmance of Appellant’s convictions by a decision issued
on December 16, 2013. In affirming Appellant’s convictions for gross sexual
imposition and rape, the court denied Appellant’s arguments that the State failed to
sufficiently prove venue, i.e. that the crimes occurred in Monroe County. Id. at
¶ 11, 18. The court also considered and rejected Appellant’s argument, under a
plain error analysis, that his indictment was “duplicative” in that it “failed to allege
with enough specificity what events made up the gross sexual imposition charges,
and a bill of particulars and testimony at trial did not correct for [sic] this
deficiency, in violation of his right to due process of law.” Id. at ¶ 18. Further, in
rejecting this argument the court found no merit to Appellant’s claim that the
indictment was insufficient because it charged multiple instances of the same
crime, and therefore failed to “satisfy the notice and double jeopardy protection
purposes of grand jury indictments.” Id. at ¶ 33.
{¶6} Thereafter, it appears that Appellant filed a motion for a delayed appeal
to the Supreme Court of Ohio, which was denied on April 23, 2014. State v.
Billman, 138 Ohio St.3d 1467, 2014-Ohio-1674, 6 N.E.3d 1203. From there,
Appellant filed a federal petition for habeas corpus on October 15, 2014, asserting
four grounds for relief. Billman v. Warden, S.D.Ohio No. 2:14-CV-1910, 2016
WL 931262 (Mar. 11, 2016). The first ground for relief consisted of a claim that Pickaway App. No. 19CA18 9
the “State did not prove venue, nor present evidence, to support the convictions, at
trial.” Id. at *2. The second ground consisted of a claim that “[t]he convictions
were against the manifest weight of the evidence.” Id. The third ground consisted
of a claim that “[t]he charges are duplicitous (carbon copies) without distinction
and do not protect the petitioner against double jeopardy.” Id. The fourth claim
has no relevance to the present appeal.
{¶7} The federal court ultimately determined that all of Appellant’s claims
“were procedurally defaulted” and the petition was ultimately denied on March 11,
2016. Id. at *5.2 In denying the petition, and pertinent to Appellant’s denial of
access to courts argument in the present appeal, the federal court found that “the
record does not support Petitioner’s claim that he was denied access to notary
services required to complete his indigency affidavit until it was too late for him to
take a timely appeal.” Id. at *5. The court further found that because “no
additional research was needed in order for him to perfect his appeal[,]” he had not
established good cause for his delay in filing his appeal to the Supreme Court of
Ohio. Id. The court further noted, in support of its decision, that “[t]he federal
2 The court explained that “[t]he term ‘procedural default’ has come to describe the situation where a person convicted of a crime in a state court fails (for whatever reason) to present a particular claim to the highest court of the State so that the State has a fair chance to correct any errors made in the courts of the trial or the appeal before a federal court intervenes in the state criminal process.” Id. at *3. The court further explained that “[t]his ‘requires the petitioner to present “the same claim under the same theory” to the state courts before raising it on federal habeas review.’ ” Pickaway App. No. 19CA18 10
courts have not been particularly sympathetic to claims that lack of access to a law
library should excuse a procedural default.” Id.
{¶8} The federal court further went on to discuss the fact that Appellant
would not have been able to meet the standard to show that his claims were
meritorious, even if they had not been procedurally defaulted. Id. The court
explained as follows:
When the claims presented in a habeas corpus petition have been
presented to and decided by the state courts, a federal habeas court
may not grant relief unless the state court’s decision was contrary to
or an unreasonable application of clearly established federal law, or
based on an unreasonable determination of the facts in light of the
evidence that was presented. Id. at *6.
The federal court noted that Appellant’s sufficiency argument involving the
establishment of venue, as well as Appellant’s double jeopardy argument related to
the indictment on multiple counts of rape and gross sexual imposition, had been
considered and addressed by the state court of appeals. Id. at *6, 8. The court
further determined that the fact that all of his claims had been procedurally
defaulted caused Appellant no prejudice, as none of his claims were meritorious.
Id. at *7, 8. Pickaway App. No. 19CA18 11
{¶9} Subsequently, Appellant filed the underlying petition for a writ of
habeas corpus in the Pickaway County Court of Common Pleas. Appellant set
forth three arguments in support of his petition. First, Appellant raised a double
jeopardy/due process argument related to his indictment and prosecution on
multiple counts of rape and gross sexual imposition charges. He essentially
claimed that the State had prosecuted him multiple times for the same crime
without making any distinction between the charged crimes. He argued that an
“indictment of identical charges is vague and duplicative” and that the repetitive
rape and gross sexual imposition charges contained in his indictment were mere
“carbon copies” of one another. He contended that the State’s failure to
differentiate between the charges violated his Sixth Amendment right to be
informed of the nature of the accusations being made against him and did not
provide him with notice of all of the elements of the offenses being charged. He
contended that, as a result, he was convicted of a generic pattern of offenses rather
than being convicted of specific, separately proven offenses with the threat of more
charges to come. He cited Valentine v. Kontech, 395 F.3d 626, 634 (6th
Cir.2005) in support of his argument, stating that Valentine held that an indictment
that fails to comport with due process, to the extent that it contained identical Pickaway App. No. 19CA18 12
charges that were undifferentiated at trial, failed to give the defendant adequate
notice of the charges against him.3
{¶10} Second, Appellant argued that he was deprived of his constitutional
right to due process and equal protection under the Fifth and Fourteenth
Amendments, claiming that venue had to be proven for each and every count of the
indictment, and that the State failed to prove venue for any of the counts. He
argued that although one of the children testified that the incidents at issue
occurred in the living room and in her mom’s bedroom, that the State failed to
connect any of the those rooms to a location to prove venue for counts one, three,
four, and seven through twelve of the indictment. He claims his conviction in light
of this failure has resulted in him being wrongfully imprisoned. Ultimately, he
claimed these alleged errors at trial caused him to be convicted based upon
insufficient evidence and resulted in a denial of his constitutional rights to due
process and equal protection. He noted in his petition that he raised this venue
argument on direct appeal, but that it was denied.
{¶11} Third, Appellant argued that he was denied his federal constitutional
right of access to the courts because prison authorities prevented and deprived him
3 The Seventh District Court of Appeals decision found that Appellant’s reliance on Valentine in support of his arguments regarding his indictment were misplaced, explaining that “the Valentine decision was based on Fifth Amendment law that does not apply to the Ohio Grand Jury indictment requirement[,]” and importantly, that the Valentine decision “misapplies existing federal law and misrepresents a number of the cases on which it relies.” State v. Billman, supra, at ¶ 34-35. Pickaway App. No. 19CA18 13
of access to the prison law library, someone trained in law to assist him, notary
services, copying services, and failed to respond to his kites requesting assistance.
He argued that only after he filed a grievance was he permitted access to the law
library and provided assistance in filing his appeal to the Ohio Supreme Court. He
further argued that he was denied access to the courts because he missed his filing
deadline and was only able to file a motion for a delayed appeal with the Supreme
Court, which was denied. He argues that the denial of his motion for leave to file a
delayed appeal was a direct result of prison officials denying him access to the
courts. Finally, he contends this denial entitles him to an immediate release from
prison.
{¶12} The State opposed Appellant’s petition below. As to Appellant’s first
argument that his indictment was defective, which he couched in terms of a double
jeopardy violation, the trial court found the issue was “addressed and ruled on” in
his first, direct appeal and was, thus, res judicata. As to his second argument that
venue was never established, the court found this issue was also “addressed and
ruled on” in his first, direct appeal and was res judicata as well. Finally, as to
Appellant’s third argument that he was denied access to the courts, the trial court
found that because Appellant was able to make a delayed appeal to the Supreme
Court of Ohio, he was not denied access to the courts despite the fact that his
motion was denied. The trial court ultimately dismissed Appellant’s petition. Pickaway App. No. 19CA18 14
Appellant now appeals from the trial court’s dismissal of his petition and assigns
four errors for our review.
ASSIGNMENTS OF ERROR
I. “THE COURT IS IN ERROR WHEN IT STATED IN ITS DECISION AND ENTRY THAT MR. BILLMAN WAS PERMITTED A DELAYED APPEAL TO THE OHIO SUPREME COURT (O.S.CT.) SEE BONILLA, ID. WHEREAS MR. BILLMAN WAS DENIED A DELAYED APPEAL AND WAS TIME BARRED FROM THE COURT IN VIOLATION OF MR. BILLMAN’S FUNDAMENTAL CONSTITUTIONAL RIGHT OF ACCESS TO THE COURT ANNUNCIATED IN BOUNDS V. SMITH, ID. UNDER THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND HIS RIGHT TO DUE PROCESS OF THE LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, U.S. SUPREME COURT RULINGS IN BOUNDS V. SMITH, HOOKS V. WAINWRIGHT. ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION.”
II. “THE COURT IS IN ERROR WITH REGARD TO RES JUDICATA. THE ISSUES OF PROVED VENUE AND DOUBLE JEOPARDY ARE NOT RES JUDICATA AS MR. BILLMAN WAS NEVER ALLOWED TO ARGUE AGAINST THE FABRICATED EVIDENCE INTRODUCED BY THE STATE. SEE BONILLA, ID. MR. BILLMAN WAS NOT PERMITTED TO RESPOND TO, OR DEFEND HIMSELF AGAINST, THE FABRICATED EVIDENCE THAT THE STATE PROVED VENUE, NOR THE DECEPTION THAT THE DOUBLE JEOPARDY ISSUE WAS ABOUT THE INDICTMENT, PRESENTED BY THE STATE. IN VIOLATION OF ACCESS TO THE COURT UNDER THE SIXTH AMENDMENT AND OF DUE PROCESS OF THE LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.”
III. “THE COURT IS IN ERROR WHEN IT SAID THAT MR. BILLMAN DOES NOT MEET THE STANDARD FOR HABEAS CORPUS. WHEREAS MR. BILLMAN’S CONVICTIONS ARE A DIRECT CONTRADICTION TO THE STATE CONSTITUTION, ARTICLE I, § 10 Pickaway App. No. 19CA18 15
WHICH SAYS THAT A CONVICTION MAY NOT BE HAD WHERE THE VENUE ALLEGED IN THE INDICTMENT IS NOT PROVEN. AND BEING DENIED ACCESS TO THE COURT PREVENTED HIM FROM ADDRESSING THIS ISSUE IN THE NORMAL COURSE OF LAW. A VIOLATION OF HIS SIXTH AMENDMENT RIGHT OF ACCESS TO THE COURT U.S. SUPREME COURT RULINGS AND TO DUE PROCESS OF THE LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION. THEREFORE MR. BILLMAN CLEARLY MEETS THE STANDARD OF EXTRAORDINARY CIRCUMSTANCES AS ANNUNCIATED IN, THE DECISION AND ENTRY, STATE EX REL. JACKSON V. MCFAUL.”
IV. THE COURT IS IN ERROR WHEN IT ACCEPTS THE STATE’S MISDIRECTION THAT THE DOUBLE JEOPARDY ISSUE IS ONLY ABOUT THE INDICTMENT. WHEREAS MR. BILLMAN WAS CONVICTED MULTIPLE TIMES FOR THE EXACT SAME OFFENSE AND THE STATE MADE NO DISTINCTION BETWEEN THE CONVICTIONS DURING TRIAL. IN VIOLATION OF THE FIFTH AMENDMENT TO THE U.S. CONSTITUTION, AND IN VIOLATION OF DUE PROCESS OF THE LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION.”
Standard of Review
{¶13} As set forth above, the State moved to dismiss Appellant’s petition
below for failure to state a claim and the trial court granted the State’s motion and
dismissed the petition. “A motion to dismiss for failure to state a claim upon
which relief can be granted tests the sufficiency of the complaint.” Volbers–
Klarich v. Middletown Mgt., Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, 929
N.E.2d 434, ¶ 11. In order for a court to dismiss a complaint under Civ.R.
12(B)(6) for failure to state a claim upon which relief can be granted, it must Pickaway App. No. 19CA18 16
appear beyond doubt that the plaintiff can prove no set of facts in support of the
claim that would entitle the plaintiff to the relief sought. Ohio Bur. Of Workers'
Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 12;
Rose v. Cochran, 4th Dist. Ross No. 11CA3243, 2012-Ohio-1729, ¶ 10. When a
trial court considers a Civ.R. 12(B)(6) motion to dismiss, it must review only the
complaint, accepting all factual allegations contained in the complaint as true and
making all reasonable inferences in favor of the nonmoving party. State ex rel.
Talwar v. State Med. Bd. of Ohio, 104 Ohio St.3d 290, 2004-Ohio-6410, 819
N.E.2d 654, ¶ 5; Perez v. Cleveland, 66 Ohio St.3d 397, 399, 613 N.E.2d 199
(1993); Estate of Sherman v. Millhon, 104 Ohio App.3d 614, 617, 662 N.E.2d
1098 (10th Dist.1995). Furthermore, the trial court “cannot rely on evidence or
allegations outside the complaint to determine a Civ.R. 12(B)(6) motion.” State ex
rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207, 680 N.E.2d 985 (1997).
{¶14} This same standard applies in cases involving claims for extraordinary
relief, including habeas corpus. Boles v. Knab, 130 Ohio St.3d 339, 2011-Ohio-
5049, 958 N.E.2d 554, ¶ 2 (“Dismissal under Civ.R. 12(B)(6) for failure to state a
claim was warranted because after all factual allegations of Boles's petition were
presumed to be true and all reasonable inferences therefrom were made in his
favor, it appeared beyond doubt that he was not entitled to the requested
extraordinary relief in habeas corpus”). “Appellate courts review de novo a Pickaway App. No. 19CA18 17
dismissal for the failure to state a claim.” Hammond v. Perry, 4th Dist. Hocking
No. 12CA27, 2013-Ohio-3683, ¶ 11, citing Allen v. Bryan, 4th Dist. Hocking No.
12CA15, 2013-Ohio-1917, ¶ 7; Barley v. Hearth & Care of Greenfield, L.L.C., 4th
Dist. Highland No. 12CA13, 2013-Ohio-279, ¶ 11. “In other words, an appellate
court affords no deference to a trial court's decision and, instead, applies its own,
independent review to determine if the Civ.R. 12(B)(6) requirements were
satisfied.” Hammond at ¶ 11, citing McDill v. Sunbridge Care Ents., Inc., 4th Dist.
Pickaway No. 12CA8, 2013-Ohio-1618. ¶ 10; Estep v. State, 4th Dist. Ross No.
09CA3088, 2009-Ohio-4349, ¶ 5.
Habeas Corpus
{¶15} Habeas corpus petitions are governed by R.C. 2725. They are
available to a person who is “unlawfully restrained of his liberty * * * to inquire
into the cause of such imprisonment, restraint, or deprivation.” R.C. 2725.01. “An
individual may petition for a writ of habeas corpus if his maximum sentence has
expired and he is being held unlawfully.” Nedea v. Cook, 4th Dist. Hocking No.
15CA12, 2015-Ohio-3668, ¶ 8, citing State v. Wilburn, 4th Dist. Lawrence No.
98CA47, 1999 WL 1281507 (Dec. 22, 1999) and Frazier v. Strickrath, 42 Ohio
App.3d 114, 115-116, 536 N.E.2d 1193 (4th Dist.1988); see also Bradley v. Hooks,
4th Dist. Ross No. 16CA3576, 2017 -Ohio- 4105, ¶ 10. Pickaway App. No. 19CA18 18
{¶16} A habeas corpus petition must conform to certain statutory
requirements. It must be signed and verified, and it must specify: (A) that the
petitioner is imprisoned or restrained of his liberty; (B) the name of the person
restraining the petitioner, if known; (C) the place the petitioner is imprisoned or
restrained, if known; and (D) it must include a copy of the commitment papers, if
the commitment papers can be obtained without impairing the efficiency of the
remedy. R.C. 2725.04. A petitioner's failure to attach all pertinent commitment
papers renders the petition fatally defective. See Tucker v. McAninch, 82 Ohio
St.3d 423, 696 N.E.2d 595 (1998) (affirming this court's dismissal of a habeas
corpus petition where petitioner did not attach all the relevant commitment papers);
Workman v. Shiplevy, 80 Ohio St.3d 174, 685 N.E.2d 231 (1997); Bloss v. Rogers,
65 Ohio St.3d 145, 146, 602 N.E.2d 602 (1992). It appears Appellant met these
procedural requirements below and that the trial court did not dismiss Appellant’s
petition on these procedural grounds.
{¶17} Additionally, a failure to comply with the provisions of R.C. 2969.25
requires the dismissal of an action in habeas corpus. Fuqua v. Williams, 100 Ohio
St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982. R.C. 2969.25(A)(1)-(4) requires that
an inmate who files a civil action or appeal against a government entity or
employee must file an affidavit that contains a description of each civil action or
appeal the inmate has filed in the previous five years. A review of the record Pickaway App. No. 19CA18 19
indicates Appellant met this requirement below with the initial filing of his petition
at the trial court level. According to the plain language of the statute, he was
required to file another affidavit along with his appeal to this Court, however, he
did not. As a result, his appeal is procedurally defective and must be dismissed.
See Robinson v. Miller, 148 Ohio St.3d 429, 2016-Ohio-7828, 71 N.E.3d 255, ¶ 7
(“The requirements of R.C. 2969.25 are ‘ “mandatory, and failure to comply with
them subjects an inmate’s action to dismissal.” ’ ”), quoting Hazel v. Knab, 130
Ohio St.3d 22, 2011-Ohio-4608, 955 N.E.2d 378, ¶ 1, in turn quoting State ex rel.
White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262, 788 N.E.2d 634, ¶ 5.
{¶18} R.C. 2969.25(C)(1) further requires that inmates who file civil actions
or appeals against a government entity or employee, and who seek waivers of the
prepayment of the full filing fees assessed by the court, shall file with the
complaint, or notice of appeal, an affidavit that the inmate is seeking a waiver of
the prepayment of the court's full filing fees, as well as an affidavit of indigency.
Washington v. Morgan, 4th Dist. Scioto No. 14CA3664, 2014-Ohio-5834, ¶ 9.
These affidavits must include a statement that sets forth the balance in the inmate's
account for each of the preceding six months and must be certified by the
institutional cashier. Id.; citing Boles v. Knab, 129 Ohio St.3d 222, 2011-Ohio-
2859, 951 N.E.2d 389, ¶ 1 (court of appeals did not err in dismissing inmate's
petition for a writ of habeas corpus because inmate must include a statement Pickaway App. No. 19CA18 20
setting forth the balance in his inmate account for each of the preceding six
months, as certified by the institutional cashier); State ex rel. McGrath v.
McDonnell, 126 Ohio St.3d 511, 2010-Ohio-4726, 935 N.E.2d 830; State ex rel.
Thacker v. Evans, 4th Dist. Gallia No. 05CA4, 2005-Ohio-933. Here, Appellant
filed an affidavit of indigency averring he was without sufficient funds to pay the
required costs and fees of the habeas action and requested a waiver at the trial court
level. His request included the required affidavit as well as the certified statement
regarding his inmate account balance. On appeal, however, although Appellant
filed an affidavit of indigency, he did not further seek a waiver of prepayment of
the filing fees. Nor did he attach a certified statement regarding his inmate account
balance. Thus, we do not construe Appellant’s filing of an affidavit of indigency
alone as a request for a waiver of fees. Therefore, Appellant was not bound by the
additional statutory filing requirements on appeal, the noncompliance with which
would have been additional grounds for dismissal of his appeal.
Legal Analysis
{¶19} Despite the procedural defect on appeal, we note that Appellant’s
petition was properly dismissed on substantive grounds by the trial court, albeit for
incorrect reasons as to the double jeopardy, venue, insufficiency, due process, and
equal protection arguments. First, to the extent Appellant argues he was denied
access to the courts by prison officials by virtue of the fact that he missed his Pickaway App. No. 19CA18 21
appellate filing deadline to the Supreme Court of Ohio and, as a result, had to file a
motion for leave to file a delayed appeal, which was denied, his argument has no
merit. As noted by the State in its motion to dismiss below and also on appeal,
Appellant’s motion for leave to file a delayed appeal to the Supreme Court was an
adequate remedy at law, despite the fact that the motion was ultimately denied.
Webber v. Kelly, 120 Ohio St.3d 440, 2008-Ohio-6695, 900 N.E.2d 175. As
explained in Webber, a petitioner has an adequate remedy at law by way of an
appeal to the Supreme Court and simply because an attempt to appeal to the
Supreme Court fails when a motion for leave to file a delayed appeal is denied, a
petitioner is not entitled to extraordinary relief in habeas corpus. Id. at ¶ 9. Thus,
Appellant’s access-to-the-courts argument had no merit.
{¶20} Second, with respect to Appellant’s arguments regarding his defective
indictment and duplicative prosecution for multiple offenses (which were couched
in terms of double jeopardy and due process violations) and failure to prove
venue/sufficiency of the evidence (which were couched in terms of due process
and equal protection violations), as noted by the trial court below and also by the
federal court in Appellant’s federal habeas corpus petition, these exact arguments
were raised on direct appeal and were considered and denied. However, contrary
to the trial court’s decision, as well as arguments by the State both below and on
appeal, they are not barred by res judicata, at least to the extent they were already Pickaway App. No. 19CA18 22
decided under Appellant’s first, direct appeal. The doctrine of res judicata
generally states as follows:
[A] final judgment of conviction bars a convicted defendant who was
represented by counsel from raising and litigating in any proceeding
except an appeal from that judgment, any defense or any claimed lack
of due process that was raised or could have been raised by the
defendant at the trial, which resulted in that judgment of conviction,
or on an appeal from that judgment. State v. Perry, 10 Ohio St.2d
175, 176, 226 N.E.2d 104, paragraph nine of the syllabus (1967).
{¶21} However, this Court has observed that the Supreme Court of
Ohio has previously “recognized that habeas corpus actions are typically
exempt from res judicata because ‘ “[c]onventional notions of finality of
litigation have no place where life or liberty is at stake.” ’ ” Lloyd v.
Robinson, 4th Dist. Ross No. 14CA3462, 2015-Ohio-1331, ¶ 12-13 (also
holding, however, that res judicata applied to bar successive petitions for
habeas corpus), quoting Natl. Amusements, Inc. v. Springdale, 53 Ohio St.3d
60, 63, 558 N.E.2d 1178 (1990), in turn quoting Sanders v. United States,
373 U.S. 1, 8, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); see also Patterson v.
Bracy, 2019-Ohio-747, 132 N.E.3d 1115, ¶ 21 (“Under Ohio law, habeas
corpus proceedings are exempt from res judicata.”). Thus, because the trial Pickaway App. No. 19CA18 23
court determined that these arguments were barred by res judicata because
they were already raised and rejected as part of Appellant’s first, direct
appeal, the trial court’s decision was in error. However, Appellant’s petition
was arguably barred by res judicata as a successive petition in light of the
fact that Appellant had filed a previous motion for a federal writ of habeas
corpus. Because Appellant’s arguments fail for other reasons, however, we
decline to address whether res judicata applies to bar a state petition for
habeas corpus that is filed after a federal petition for habeas corpus is
denied, when the grounds for denial were based on procedural default and
were not based upon the merits.
{¶22} As explained in Webber, supra, “in general, ‘habeas corpus is not
available to remedy claims concerning * * * the sufficiency of the evidence.’ ”
Webber at ¶ 8, quoting State ex rel. Tarr v. Williams, 112 Ohio St.3d 51, 2006-
Ohio-6368, 857 N.E.2d 1225, ¶ 4; see also Bradley v. Hooks, 4th Dist. Ross No.
16CA3576. 2017-Ohio-4105, ¶ 14. Likewise, challenges to an indictment are
properly brought on direct appeal in the ordinary course of law and cannot be
challenged collaterally by an extraordinary writ. See generally, State v. Lambert,
2017-Ohio-4310, 82 N.E.3d 29, ¶ 15 (4th Dist.), citing State ex rel. Bandarapalli v.
Gallagher, 128 Ohio St.3d 314, 2011-Ohio-230, 943 N.E.2d 1020, ¶ 1; see also
Lloyd v. Robinson, supra, at ¶ 14. Stated another way, challenges to the Pickaway App. No. 19CA18 24
indictment, arguments challenging the sufficiency of the evidence, and alleged due
process violations that occur as a result, are not cognizable in habeas corpus. Thus,
the trial court reached the correct result as to these arguments in dismissing
Appellant’s petition, albeit for the wrong reasons.
{¶23} Moreover, this Court could not review the merits of Appellant’s
arguments even if we were so inclined because Appellant has not provided us with
the trial court record related to his Monroe County, Ohio convictions. Finally, as
noted by the State and though not mentioned by the trial court, Appellant is not
entitled to extraordinary relief because his maximum sentence has not expired. As
set forth above, an individual may only petition for a writ of habeas corpus if his
maximum sentence has expired and he is being held unlawfully. Nedea v. Cook,
supra, at ¶ 8 and Bradley v. Hooks, supra, at ¶ 10. Appellant, however, is currently
serving two concurrent terms of life in prison without parole, along with seven
consecutive sixty-month prison terms. As a result, he cannot demonstrate that his
maximum sentence has expired.
{¶24} Thus, to summarize, because Appellant’s petition failed on
substantive grounds below, we cannot conclude the trial court erred in dismissing
his petition for failure to state a claim. Furthermore, because Appellant’s appeal to
this Court fails on procedural grounds, it likewise must be dismissed. Accordingly, Pickaway App. No. 19CA18 25
the present appeal is hereby dismissed.
APPEAL DISMISSED. Pickaway App. No. 19CA18 26
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE DISMISSED and costs be assessed to Appellee. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Abele, J. & Hess, J.: Concur in Judgment and Opinion. For the Court,
_________________________ Jason P. Smith Presiding Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.