[Cite as Gephart v. Miller, 2013-Ohio-3988.] STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
ROBERT C. GEPHART ) CASE NO. 12 BE 30 ) PETITIONER ) ) VS. ) OPINION AND ) JUDGMENT ENTRY MICHELLE MILLER, WARDEN ) ) RESPONDENT )
CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus
JUDGMENT: Dismissed.
APPEARANCES:
For Petitioner: Robert C. Gephart, Pro se #A611-193 Belmont Correctional Institution P.O. Box 540 St. Clairsville, Ohio 43950
For Respondent: Atty. Mike DeWine Attorney General of Ohio Atty. Maura O’Neill Jaite Senior Assistant Attorney General Criminal Justice Section 150 East Gay Street, 16th Floor Columbus, Ohio 43215
JUDGES:
Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich Dated: September 13, 2013 [Cite as Gephart v. Miller, 2013-Ohio-3988.] PER CURIAM.
{¶1} Petitioner Robert C. Gephart seeks a writ of habeas corpus for
immediate release from imprisonment at the Belmont Correctional Institution in St.
Clairsville, Belmont County, Ohio. He asserts that his conviction was obtained
through a faulty indictment. He contends that his trial counsel was ineffective. Part
of the petition is devoted to statute of limitations defenses. Finally, he argues that his
guilty plea was not made knowingly and voluntarily. Respondent Michele Miller,
Warden of the Belmont Correctional Institution, has filed a motion to dismiss.
{¶2} Petitioner’s claims fail for a number of reasons. First, he failed to pay
the required filing fees or to alternatively properly file a fee waiver request. Second,
he failed to attach the required commitment papers. Third, he did not attach an
affidavit of prior civil actions filed by him within the past five years. All of these are
mandatory requirements when petitioning for habeas relief, and the omission of any
one is grounds for dismissal. We must add that Petitioner’s claims are not
cognizable in a habeas corpus action because there were other adequate legal
alternatives available to pursue those claims. Accordingly, we hereby grant
Respondent’s motion and dismiss this petition with prejudice pursuant to Civ.R.
12(B)(6).
Background
{¶3} On June 20, 2011, Petitioner was sentenced in Clermont County Court
of Common Pleas Case No. 2010 CR 732 to ten and one-half years in prison after
pleading guilty to seven counts of gross sexual imposition. He will apparently have -2-
served his sentence by 2018. Respondent is the warden at the Belmont Correctional
Institution and currently maintains custody over Petitioner.
{¶4} Petitioner did not file a timely appeal of his conviction and sentence.
He later filed a motion for leave to file a delayed appeal on February 1, 2012. The
Twelfth District Court of Appeals dismissed the motion for delayed appeal on March
26, 2012. Petitioner then filed a motion for delayed appeal with the Ohio Supreme
Court, which was also denied.
{¶5} On May 14, 2012, Petitioner filed a motion with the trial court to
withdraw his guilty plea. The motion was denied on July 10, 2012.
{¶6} Petitioner filed the instant petition for writ of habeas corpus on August
1, 2012. Respondent filed its motion to dismiss on September 1, 2012. Petitioner
filed a further memorandum on November 15, 2012.
Procedural Errors
{¶7} Respondent argues that the petition must be dismissed for failure to
meet the statutory filing requirements of a proper petition for writ of habeas corpus.
R.C. 2725.01, et seq., governs habeas filings, and failure to satisfy these statutory
requirements is generally fatal to the petition. One of the requirements is that the
petitioner must file all pertinent commitment papers relevant to the arguments being
raised in the petition. R.C. 2725.04(D). The commitment papers are necessary for a
complete understanding of the petition. Bloss v. Rogers, 65 Ohio St.3d 145, 146,
602 N.E.2d 602 (1992). Failure to file the necessary commitment papers requires
dismissal of the petition. Id. -3-
{¶8} When an inmate initiates any civil action against a government
employee or entity, R.C. 2969.25(A) requires an affidavit of the inmate’s prior civil
actions to be filed at the same time. R.C. 2969.25(A) applies to habeas filings.
Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982, ¶6-9.
Belated attempts to file this affidavit cannot correct noncompliance with the statute.
Id. at ¶9. Failure to timely file the required affidavit of prior civil actions mandates
dismissal of the petition. State ex rel. Washington v. Ohio Adult Parole Auth., 87
Ohio St.3d 258, 259, 719 N.E.2d 544 (1999).
{¶9} R.C. 2969.25(C) requires an inmate seeking waiver of the filing fees to
file an affidavit of indigency. Along with that affidavit, the inmate must also file a
certified statement of the inmate’s account balance for the previous six months, and a
statement of all cash and items of value owned by the inmate. “The requirements of
R.C. 2969.25 are mandatory, and failure to comply with them subjects an inmate’s
action to dismissal.” State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-
2262, 788 N.E.2d 634, ¶5. Failure to file any one of these documents at the time of
the initial filing of the petition results in dismissal of the petition. Hazel v. Knab, 130
Ohio St.3d 22, 2011-Ohio-4608, 955 N.E.2d 378, ¶1. Although we have previously
held that this error may be corrected after the initial filing of the petition, the
subsequent Hazel v. Knab decision of the Ohio Supreme Court has clarified that the
error cannot be corrected after the initial filing and is fatal to the petition. See
Thomas v. Eberlin, 7th Dist. No. 08 BE 14, 2008-Ohio-4663, ¶11. -4-
{¶10} Petitioner has violated all of these statutory provisions. Petitioner failed
to file any commitment papers with his petition. Petitioner failed to file an affidavit of
prior civil actions. Petitioner failed to file his inmate account statement. For any one
of these three reasons, the petition must be dismissed.
Substantive Arguments
{¶11} Respondent requests that the petition also be dismissed under Civ.R.
12(B)(6). A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim may be
granted when it appears beyond doubt from the face of the petition, presuming the
allegations contained therein are true, that the petitioner can prove no facts which
would warrant the relief sought. State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80,
537 N.E.2d 641 (1989). To withstand a motion to dismiss, a complaint must contain,
with sufficient particularity, a statement of the clear legal duty of the respondent to
perform the act requested. State ex rel. Boggs v. Springfield Local School Dist. Bd.
of Ed., 72 Ohio St.3d 94, 95, 647 N.E.2d 788 (1995). The purpose of a Civ.R.
12(B)(6) motion is to test the sufficiency of the complaint. Id. In order for a case to
be dismissed for failure to state a claim, it must appear beyond doubt that, even
assuming all factual allegations in the complaint are true, the nonmoving party can
prove no set of facts that would entitle that party to the relief requested. State ex rel.
Pirman v.
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[Cite as Gephart v. Miller, 2013-Ohio-3988.] STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
ROBERT C. GEPHART ) CASE NO. 12 BE 30 ) PETITIONER ) ) VS. ) OPINION AND ) JUDGMENT ENTRY MICHELLE MILLER, WARDEN ) ) RESPONDENT )
CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus
JUDGMENT: Dismissed.
APPEARANCES:
For Petitioner: Robert C. Gephart, Pro se #A611-193 Belmont Correctional Institution P.O. Box 540 St. Clairsville, Ohio 43950
For Respondent: Atty. Mike DeWine Attorney General of Ohio Atty. Maura O’Neill Jaite Senior Assistant Attorney General Criminal Justice Section 150 East Gay Street, 16th Floor Columbus, Ohio 43215
JUDGES:
Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich Dated: September 13, 2013 [Cite as Gephart v. Miller, 2013-Ohio-3988.] PER CURIAM.
{¶1} Petitioner Robert C. Gephart seeks a writ of habeas corpus for
immediate release from imprisonment at the Belmont Correctional Institution in St.
Clairsville, Belmont County, Ohio. He asserts that his conviction was obtained
through a faulty indictment. He contends that his trial counsel was ineffective. Part
of the petition is devoted to statute of limitations defenses. Finally, he argues that his
guilty plea was not made knowingly and voluntarily. Respondent Michele Miller,
Warden of the Belmont Correctional Institution, has filed a motion to dismiss.
{¶2} Petitioner’s claims fail for a number of reasons. First, he failed to pay
the required filing fees or to alternatively properly file a fee waiver request. Second,
he failed to attach the required commitment papers. Third, he did not attach an
affidavit of prior civil actions filed by him within the past five years. All of these are
mandatory requirements when petitioning for habeas relief, and the omission of any
one is grounds for dismissal. We must add that Petitioner’s claims are not
cognizable in a habeas corpus action because there were other adequate legal
alternatives available to pursue those claims. Accordingly, we hereby grant
Respondent’s motion and dismiss this petition with prejudice pursuant to Civ.R.
12(B)(6).
Background
{¶3} On June 20, 2011, Petitioner was sentenced in Clermont County Court
of Common Pleas Case No. 2010 CR 732 to ten and one-half years in prison after
pleading guilty to seven counts of gross sexual imposition. He will apparently have -2-
served his sentence by 2018. Respondent is the warden at the Belmont Correctional
Institution and currently maintains custody over Petitioner.
{¶4} Petitioner did not file a timely appeal of his conviction and sentence.
He later filed a motion for leave to file a delayed appeal on February 1, 2012. The
Twelfth District Court of Appeals dismissed the motion for delayed appeal on March
26, 2012. Petitioner then filed a motion for delayed appeal with the Ohio Supreme
Court, which was also denied.
{¶5} On May 14, 2012, Petitioner filed a motion with the trial court to
withdraw his guilty plea. The motion was denied on July 10, 2012.
{¶6} Petitioner filed the instant petition for writ of habeas corpus on August
1, 2012. Respondent filed its motion to dismiss on September 1, 2012. Petitioner
filed a further memorandum on November 15, 2012.
Procedural Errors
{¶7} Respondent argues that the petition must be dismissed for failure to
meet the statutory filing requirements of a proper petition for writ of habeas corpus.
R.C. 2725.01, et seq., governs habeas filings, and failure to satisfy these statutory
requirements is generally fatal to the petition. One of the requirements is that the
petitioner must file all pertinent commitment papers relevant to the arguments being
raised in the petition. R.C. 2725.04(D). The commitment papers are necessary for a
complete understanding of the petition. Bloss v. Rogers, 65 Ohio St.3d 145, 146,
602 N.E.2d 602 (1992). Failure to file the necessary commitment papers requires
dismissal of the petition. Id. -3-
{¶8} When an inmate initiates any civil action against a government
employee or entity, R.C. 2969.25(A) requires an affidavit of the inmate’s prior civil
actions to be filed at the same time. R.C. 2969.25(A) applies to habeas filings.
Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982, ¶6-9.
Belated attempts to file this affidavit cannot correct noncompliance with the statute.
Id. at ¶9. Failure to timely file the required affidavit of prior civil actions mandates
dismissal of the petition. State ex rel. Washington v. Ohio Adult Parole Auth., 87
Ohio St.3d 258, 259, 719 N.E.2d 544 (1999).
{¶9} R.C. 2969.25(C) requires an inmate seeking waiver of the filing fees to
file an affidavit of indigency. Along with that affidavit, the inmate must also file a
certified statement of the inmate’s account balance for the previous six months, and a
statement of all cash and items of value owned by the inmate. “The requirements of
R.C. 2969.25 are mandatory, and failure to comply with them subjects an inmate’s
action to dismissal.” State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-
2262, 788 N.E.2d 634, ¶5. Failure to file any one of these documents at the time of
the initial filing of the petition results in dismissal of the petition. Hazel v. Knab, 130
Ohio St.3d 22, 2011-Ohio-4608, 955 N.E.2d 378, ¶1. Although we have previously
held that this error may be corrected after the initial filing of the petition, the
subsequent Hazel v. Knab decision of the Ohio Supreme Court has clarified that the
error cannot be corrected after the initial filing and is fatal to the petition. See
Thomas v. Eberlin, 7th Dist. No. 08 BE 14, 2008-Ohio-4663, ¶11. -4-
{¶10} Petitioner has violated all of these statutory provisions. Petitioner failed
to file any commitment papers with his petition. Petitioner failed to file an affidavit of
prior civil actions. Petitioner failed to file his inmate account statement. For any one
of these three reasons, the petition must be dismissed.
Substantive Arguments
{¶11} Respondent requests that the petition also be dismissed under Civ.R.
12(B)(6). A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim may be
granted when it appears beyond doubt from the face of the petition, presuming the
allegations contained therein are true, that the petitioner can prove no facts which
would warrant the relief sought. State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80,
537 N.E.2d 641 (1989). To withstand a motion to dismiss, a complaint must contain,
with sufficient particularity, a statement of the clear legal duty of the respondent to
perform the act requested. State ex rel. Boggs v. Springfield Local School Dist. Bd.
of Ed., 72 Ohio St.3d 94, 95, 647 N.E.2d 788 (1995). The purpose of a Civ.R.
12(B)(6) motion is to test the sufficiency of the complaint. Id. In order for a case to
be dismissed for failure to state a claim, it must appear beyond doubt that, even
assuming all factual allegations in the complaint are true, the nonmoving party can
prove no set of facts that would entitle that party to the relief requested. State ex rel.
Pirman v. Money, 69 Ohio St.3d 591, 593, 635 N.E.2d 26 (1994).
{¶12} If the petition does not 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 -5-
on motion of the respondent or sua sponte by the court. Flora v. State, 7th Dist. No.
04 BE 51, 2005-Ohio-2382, ¶5.
{¶13} 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.” 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 at law, such
as a direct appeal or postconviction relief. In re Pianowski, 7th Dist. No. 03 MA 16,
2003-Ohio-3881, ¶3; see also, State ex rel. Pirman v. Money, 69 Ohio St.3d 591,
593, 635 N.E.2d 26 (1994). If a person is in custody by virtue of a judgment of a
court of record and the court had jurisdiction to render the judgment, the writ of
habeas corpus will not be allowed. Tucker v. Collins, 64 Ohio St.3d 77, 78, 591
N.E.2d 1241 (1992). “Absent a patent and unambiguous lack of jurisdiction, a party
challenging a court’s jurisdiction has an adequate remedy at law by appeal.” Smith v.
Bradshaw, 109 Ohio St.3d 50, 2006-Ohio-1829, 845 N.E.2d 516, ¶10.
{¶14} Habeas corpus relief is only available when there is no other adequate
legal remedy available. State ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 186, 652
N.E.2d 746, 748 (1995). Habeas relief is also not a substitute for direct appeal or
other forms of legal postconviction relief. Cornell v. Schotten, 69 Ohio St.3d 466, 633
N.E.2d 1111 (1994). -6-
{¶15} The burden is on the petitioner to establish an immediate right to
release. Halleck v. Koloski, 4 Ohio St.2d 76, 77, 212 N.E.2d 601 (1965); Yarbrough
v. Maxwell, 174 Ohio St. 287, 288, 189 N.E.2d 136 (1963).
{¶16} In the instant case, Petitioner alleges that he is being unlawfully
detained because: (1) his indictment was deficient; (2) his legal counsel was
ineffective; (3) he was not prosecuted within the criminal statute of limitations; and (4)
his guilty pleas were not knowingly and voluntarily entered. None of these issues are
appropriately raised in habeas proceedings. “Habeas corpus is not available to
challenge either the validity or sufficiency of an indictment.” State ex rel. Simpson v.
Lazaroff, 75 Ohio St.3d 571, 571, 664 N.E.2d 937 (1996). “[Petitioner’s] claim that
his trial counsel was ineffective is not cognizable in habeas corpus.” Davis v. Wilson,
100 Ohio St.3d 269, 2003-Ohio-5898, 798 N.E.2d 379, ¶9. A statute of limitations
violation does not divest a court of its jurisdiction and is not cognizable in habeas
corpus. Daniel v. State, 98 Ohio St.3d 467, 2003-Ohio-1916, 786 N.E.2d 891 at ¶7.
“[T]he validity of a guilty plea cannot be contested in a habeas corpus action because
that issue does not relate to the jurisdiction of a trial court to hear the matter.” State
ex rel. Fitzpatrick v. Trumbull Correctional Inst. Warden, 11th Dist. No. 2003-T-0080,
2003-Ohio-5005, ¶10.
{¶17} Petitioner has raised no arguments that are cognizable in a habeas
action. The arguments raised do not challenge the jurisdiction of the court. The
proper forum for all of Petitioner’s current claims was through direct appeal, post-trial -7-
motions, or postconviction relief proceedings. Therefore, we sustain Respondent’s
motion to dismiss.
Conclusion
{¶18} We hereby dismiss the petition for writ of habeas corpus with prejudice.
Petitioner committed a number of filing errors that mandate dismissal of the petition.
He failed to file the pertinent commitment papers; failed to file an affidavit of prior civil
actions; and failed to file his inmate account statement with his affidavit of indigency.
In addition, Petitioner’s claims are not cognizable in habeas corpus, as he had other
adequate forms of legal relief available that preclude granting extraordinary relief in
habeas.
{¶19} For all the aforementioned reasons, we dismiss the petition for habeas
corpus.
{¶20} Costs taxed against Petitioner. Final order. Clerk to serve notice as
provided by the Civil Rules.
Waite, J., concurs.
Donofrio, J., concurs.
Vukovich, J., concurs.