[Cite as Bradley v. Hooks, 2017-Ohio-4105.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
LARRY WAYNE BRADLEY, : : Case No. 16CA3576 Petitioner-Appellant, : : vs. : DECISION AND JUDGMENT : ENTRY MARK HOOKS, WARDEN, : : Respondent-Appellee. : Released: 05/26/17 _____________________________________________________________ APPEARANCES:
Larry Wayne Bradley, Chillicothe, Ohio, Pro Se Appellant.
Michael DeWine, Attorney General of Ohio, and Stephanie Watson, Principal Assistant Attorney General of Ohio, Columbus, Ohio, for Appellee. _____________________________________________________________
McFarland, J.
{¶1} This is an appeal from a Ross County Court of Common Pleas
judgment entry granting Appellee, Mark Hooks, Warden's, motion to
dismiss Appellant, Larry Wayne Bradley's, petition for habeas corpus. On
appeal, Appellant challenges the trial court's grant of Appellee’s Civ.R.
12(B)(6) motion to dismiss and thus the denial of his petition. Because
Appellant’s petition for habeas corpus fails on both procedural and
substantive grounds, we 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. Ross App. No. 16CA3576 2
As such, the arguments raised by Appellant on appeal are without merit.
Accordingly, the judgment of the trial court is affirmed.
FACTS
{¶2} On June 27, 2016, Appellant, Larry Wayne Bradley, filed a
petition for a writ of habeas corpus in the Ross County Court of Common
Pleas alleging that he was being illegally confined and restrained by Mark
Hooks, Warden of the Ross Correctional Institution, in connection with
convictions and sentences entered by the Jackson County Court of Common
Pleas and the Scioto County Court of Common Pleas. He further alleged in
his petition that his imprisonment and detention was without legal authority
as his plea agreements which resulted in his convictions were not within the
subject matter jurisdictions of either court. He argued he was entitled to
immediate release as a result. Although Appellant attached a sworn affidavit
verifying the truth of the statement contained in his petition, he failed to
attach copies of his commitment papers from the Jackson and Scioto County
Courts.1 Thus, we have very limited information regarding Appellant’s
procedural history and the convictions of which he is complaining.
{¶3} Because the information accompanying Appellant’s petition is
severely lacking, we take judicial notice of the information provided on the 1 He also failed to attach an affidavit describing each civil action or appeal filed within the previous five years. He likewise failed to attach a certified statement from his prison cashier setting forth the balance in his private account for each of the preceding six months. Ross App. No. 16CA3576 3
Ohio Department of Corrections webpage, which indicates that Appellant is
currently incarcerated for a first degree felony aggravated robbery
conviction that occurred in Scioto County, as well as a fourth degree felony
receiving stolen property conviction that occurred in Jackson County, and
that his scheduled date of release from prison is not until November 25,
2018.2 We further take judicial notice of a prior decision issued by this
Court with respect to a previous petition for habeas corpus filed by
Appellant in the Scioto County Court of Common Pleas, which set forth the
facts regarding Appellant’s Scioto county conviction and incarceration
history as follows:
“In December 2009, Bradley was indicted by the Scioto County Grand Jury on charges of Aggravated Robbery, Robbery, Conspiracy to Commit Aggravated Robbery and/or Robbery, Kidnapping (two counts), and Tampering with Evidence. The indictment included a firearm specification and a vehicle forfeiture specification. Eventually, the State dismissed the Conspiracy charge, and Bradley pleaded not guilty to all counts of the indictment. However, on January 5, 2010, Bradley changed his plea, and entered a plea of guilty to the Aggravated Robbery charge and forfeiture specification. The remaining counts of the indictment were dismissed. Bradley was ultimately sentenced to serve nine years in prison, with three of those years being mandatory. The sentencing entry, filed on January 6, 2010, indicates that ‘[t]his [was] an agreed sentence pursuant to Ohio Revised Code Section 2953.08(D).’
2 Both trial courts and appellate courts can take judicial notice of filings readily accessible from a court's website. State v. Wright, 4th Dist. Scioto Nos. 15CA3705, 15CA3706, 2016-Ohio-7795, FN. 3; citing In re Helfrich, 5th Dist. Licking No. 13CA20, 2014-Ohio-1933, ¶ 35; State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 974 N.E.2d 516, ¶ 8, 10 (court can take judicial notice of judicial opinions and public records accessible from the internet). Ross App. No. 16CA3576 4
Bradley did not file a direct appeal of his conviction and sentence. However, in the six plus years since his guilty plea and imposition of sentence, Bradley has caused a deluge of post-conviction motions and other documents to be filed with the trial court. His most recent filings include, inter alia, a motion for judicial release filed on December 12, 2014, and a pro se petition to discharge filed on September 17, 2015. The trial court denied the motion for judicial release on April 8, 2015. Bradley appealed the denial of his motion for judicial release to this Court; and we dismissed his appeal for lack of jurisdiction concluding that a trial court's denial of a motion for judicial release is not a final appealable order. See State v. Bradley, 4th Dist. Scioto No. 15CA3698 (Decision and Judgment Entry filed on August 18, 2015).” State v. Bradley, 4th Dist. Scioto No. 15CA3721, 2016-Ohio-3245, ¶ 2-3.
In that decision, we construed Appellant’s petition for discharge as a petition
for habeas corpus and dismissed it for lack of jurisdiction, based upon the
fact that the petition was filed in a county other than where Appellant was
incarcerated. Id. at ¶ 1; citing R.C. 2725.03; Brown v. Hall, 123 Ohio St.3d
381, 2009-Ohio-5592, 916 N.E.2d 807, ¶ 1. However, before doing so, we
noted that Appellant argued “that his now deceased twin brother, named
Larry W. Bradley, was the actual perpetrator of the crimes.” Id. at ¶ 6. We
further noted Appellant’s argument “that his identity has been mistaken and
that his petition should have been granted because his conviction is unlawful
due to insufficient evidence, and because he was denied effective assistance
of counsel throughout the pre-trial process.” Id. Ross App. No. 16CA3576 5
{¶4} A review of Appellant’s filings in the Ross County Court of
Common Pleas and now on appeal indicates Appellant filed the underlying
petition for habeas corpus in Ross County in response to our decision that
the Scioto County Court of Common Pleas did not have jurisdiction to
consider his petition, as he was incarcerated in Ross County. In response,
Appellee, Warden Mark Hooks, filed a motion to dismiss Appellant’s
petition, citing procedural as well as substantive deficiencies, and noting
Appellant’s maximum sentence had not yet expired. Appellant filed a pro se
response to Appellee’s motion to dismiss, expanding his arguments to
include a reference to a twin brother who he claims was actually the
individual who committed the crimes to which Appellant was convicted and
sentenced. Appellant also filed a separate pleading entitled “Plaintiff’s Pro
Se Motion to Dismiss Indictment,” which again made allegations regarding
his twin brother, as well as ineffective assistance of counsel and corruption
by Scioto County government officials.
{¶5} On October 17, 2016, the Ross County Court of Common Pleas
granted Appellee’s motion to dismiss, thereby dismissing Appellant’s
petition for habeas corpus. The trial court cited Appellant’s failure to attach
his commitment papers, as well as the fact that his maximum sentence had
not expired in support of its decision, and in doing so rejected Appellant’s Ross App. No. 16CA3576 6
assertion that the Scioto County Court of Common Pleas lacked subject
matter jurisdiction over the underlying matter. With respect to Appellant’s
remaining pro se motion to dismiss indictment, finding it had no jurisdiction
to dismiss a Scioto County indictment not properly before it, the trial court
denied Appellant’s motion to dismiss. It is from this decision and entry
Appellant now brings his appeal, setting forth the following assignments of
error for our review.
ASSIGNMENTS OF ERROR
{¶6} Appellant's brief is difficult, at best, to decipher. However, it
appears Appellant sets forth the following "Proposition of Law #1" as an
assignment of error:
"THE TRAIL COURTS ERRED BY NOT ALLOWING THE INTRODUCTION OF LARRY W BRADLEY THE INTRODUCTION TO QUESTION AND RESOLVES THE ISSUES OF AND ABOUT POLICE ARRESTING THE WRONG PERSON AS TO LARRY W. BRADLEY ABOUT CASE#09-CR-0170 OUT OF JACKSON OHIO COURT OF COMMON PLEAS.OR CASE # 09CR1174 OF A ROBBERY IN VIOLATION OF THE OHIO REVISED CODE AND THE FEDERAL AND OHIO CONSTITUTION PROTCTION OF DUE PROCESS OF LAW AND FUNDMENTALS FAIRNESS EQUAL PROTECTION OF THE RIGHTS TO {A} COMPLETE DEFENSE AT A PRETRAIL OR TRAIL ON EACH CASE #S." [SIC]
Appellant's brief contains another section entitled "Designation Setting For
Assignment Errors To Re= 16-CI-297= Now Appeal# 16-CA-003576"
which appears to list additional assignments of error. They are as follows: Ross App. No. 16CA3576 7
"1. IM NOT LARRY W. BRADLEY. 2 THAT A DIED PERSON NAME. 3 THAT A DIED PERSON SIGNER ON EACH CASE # 09 CR 0170 AND 09 CR 1174 TO = # 619-185 PRISON #. 4 THE 4TH APPEALS JUDGE TOLD ME =LARRY WAYNE BRADLEY TO GO TO ROSS COUNTY COURTS FOR THIS CASE #16-CI-297 THAT NOW = 16-CA003576 ON APPEAL. BECAUSE OF THE TRUE FACTS IS THE OFFICER MR. MARK HOOKS IS BY WHOM LARRY WAYNE BRADLEY IS BEANING RESTRAINED AND CONFINED BY. 5 I'M A LIVING PERSON AND NOT THE PERSON THAT BEEN DIED OVER 5YRS NOW BY LAW 6 LARRY W BRADLEY DIED IN THE YEAR 2011 NOVBER, 13 7 I LARRY WAYNE BRADLEY HAVE THE RIGHTS TO RULE 44A. 8 HOW CAN A DIED PERSON BE STILL IN ROSS PRISON IF HE DIED OVER 5 YR. AGO ITS 2016 YRS." [SIC]
LEGAL ANALYSIS
{¶7} As set forth above, the purported assignments of error raised by
Appellant are difficult to decipher. The arguments contained in Appellant's
brief are not only difficult to decipher, but they are somewhat unintelligible.
However, taking Appellant's brief as a whole, in conjunction with a review
of his original petition for habeas corpus filed in the trial court, it appears
Appellant believes he is entitled to immediate release from prison based
upon his claims that the Jackson and Scioto County trial courts did not have
subject matter jurisdiction over his criminal cases. He also seems to allege
that he had a twin brother, "Larry W. Bradley," who is allegedly now
deceased, who Appellant claims is the person actually guilty of the crimes Ross App. No. 16CA3576 8
for which he was convicted and for which he is now currently imprisoned.
Appellant repeatedly refers to himself as "Larry Wayne Bradley" as opposed
to "Larry W. Bradley," which he claims was his now deceased twin brother's
name. That being said, we construe Appellants' arguments as a general
challenge to the trial court's decision granting Appellee's motion to dismiss
Appellant's petition for habeas corpus.
MOTION TO DISMISS
{¶8} “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 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, Ross App. No. 16CA3576 9
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).
{¶9} 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 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;
Bartley 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, Ross App. No. 16CA3576 10
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
{¶10} 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. State v.
Wilburn, 4th Dist. Lawrence No. 98CA47, 1999 WL 1281507 (Dec. 22,
1999); Frazier v. Strickrath, 42 Ohio App.3d 114, 115-116, 536 N.E.2d
1193 (4th Dist.1988).
{¶11} 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 Ross App. No. 16CA3576 11
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
(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; Bloss v. Rogers, 65 Ohio St.3d 145, 146,
602 N.E.2d 602 (1992). Because Appellant failed to include a copy of his
commitment papers, his habeas corpus petition is fatally flawed and must be
dismissed.
{¶12} Additionally, the failure to comply with the provisions of R.C.
2969.25 requires the dismissal of the action. 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. This Court is aware Appellant has filed at least one prior habeas
corpus action, as evidenced by our decision in State v. Bradley, supra, as
referenced above; however, Appellant has not filed such an affidavit. As a
result, his petition is procedurally defective on this ground as well and must
be dismissed. State ex rel. Pamer v. Collier, 108 Ohio St.3d 492, 493, 2006- Ross App. No. 16CA3576 12
Ohio-1507, 844 N.E.2d 842; Nedea v. Cook, 4th Dist. Hocking No. 15CA12,
2015-Ohio-3668, ¶ 10.
{¶13} R.C. 2969.25(C)(1) further requires 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 (court
of appeals did not err in dismissing inmate's petition for a writ of habeas
corpus because inmate must include a statement 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; however, he did not file a certified Ross App. No. 16CA3576 13
statement setting forth a six month history of his inmate account. This
failure also constitutes sufficient reason to deny the petition for habeas
corpus. State v. Pinkney, 8th Dist. Cuyahoga No. 104845, 2016-Ohio-7619,
¶ 4.
{¶14} In addition to the procedural defects, Appellant's petition must
be dismissed on substantive grounds. First, to the extent he claims that he
was wrongly convicted instead of his twin brother in both Jackson and
Scioto Common Pleas courts, or that his convictions were supported by
insufficient evidence, these claims could have been raised on direct appeal.
Because he had an adequate remedy at law, habeas corpus is not an available
remedy. Lynch v. Wilson, 114 Ohio St.3d 118, 119, 2007-Ohio-3254, 868
N.E.2d 982, 983, ¶¶ 5-6 (2007)(“Lynch's claim that there was insufficient
evidence to support his conviction and sentence for engaging in a pattern of
corrupt activity is not cognizable in habeas corpus.”). “[H]abeas corpus is
not available to remedy claims concerning * * * the sufficiency of the
evidence.” State ex rel. Tarr v. Williams, 112 Ohio St.3d 51, 2006-Ohio-
6368, 857 N.E.2d 1225, ¶ 4. See also Caudill v. Brigano, 100 Ohio St.3d 37,
2003–Ohio–4777, 795 N.E.2d 674, ¶ 3 (applying general rule to habeas
corpus petition challenging convictions and sentence for several crimes,
including engaging in a pattern of corrupt activity). Further, because it Ross App. No. 16CA3576 14
appears from the record that Appellant actually pleaded guilty to the charges
against him in both Jackson and Scioto counties, he stipulated to the
sufficiency of the evidence that it was he, not his twin brother, who
committed the crimes. Thus, Appellant's petition must be dismissed
because he is not entitled to seek the extraordinary remedy of a writ of
habeas corpus to address what he claims is essentially an insufficiency of
evidence to support the trial court's finding of guilt on the charges at issue.
{¶15} Second, Appellant seems to argue, although not clearly, that the
trial courts in Jackson and Scioto counties were without subject-matter
jurisdiction over him and these matters. Aside from stating such in his
underlying petition Appellant makes no real argument as to why he believes
these trial courts lacked subject-matter jurisdiction. He further argues he is
entitled to immediate release from prison. As stated previously, Appellant
has failed to file his commitment papers, which is a requirement when
pursuing a habeas corpus action. Thus, we have a limited picture of
Appellant's procedural history. However, taking judicial notice of a prior
decision by this Court, as well as the Ohio Department of Corrections
webpage, it appears that Appellant is currently incarcerated for a first degree
felony aggravated robbery conviction that occurred in Scioto County, as well
as a fourth degree felony receiving stolen property conviction that occurred Ross App. No. 16CA3576 15
in Jackson County. According to the Ohio Department of Corrections
webpage, Appellant's scheduled date of release from prison is not until
November 25, 2018. "It is well established that a prisoner has no
constitutional or statutory right to be conditionally released from prison prior
to the expiration of his sentence." Johnson v. Robinson, 4th Dist. Ross No.
14CA3460, 2016-Ohio-3366, ¶ 25; citing Corrin v. Huffman, 4th Dist.
Scioto No. 00CA2700, 2000 WL 1234068, *4 (Aug. 25, 2000).
{¶16} Likewise, " '[i]t is well-established that a common pleas court
has original jurisdiction in felony cases and its jurisdiction in invoked by the
return of an indictment.' " State v. Bradford, 4th Dist. Ross No. 08CA3053,
2009-Ohio-1864, ¶ 18; quoting State v. Hillman, 10th Dist. Franklin Nos.
06AP-1230, 07AP-728, 2008-Ohio-2341, ¶ 41; citing Click v. Eckle, 174
Ohio St. 88, 89, 186 N.E.2d 731 (1962); see also R.C. 2931.03. There is
simply no credible evidence in the record to suggest that Appellant was not
the actual defendant named in the indictments, or for that matter, the actual
defendant who pleaded guilty to the charges at issue. As such, because
Appellant was the individual named in the indictments, he was subject to the
jurisdiction of both the Jackson and Scioto County Courts of Common Pleas.
{¶17} Thus, because Appellant's petition for habeas corpus failed on
both procedural and substantive grounds, we find no merit to the arguments Ross App. No. 16CA3576 16
raised on appeal and we further conclude the trial court did not err in
granting Appellee's motion to dismiss the petition. Accordingly, the trial
court’s judgment is affirmed.
JUDGMENT AFFIRMED. Ross App. No. 16CA3576 17
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross 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.
Harsha, J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________ Matthew W. McFarland, 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.