Goldshtein v. Bradshaw

2012 Ohio 3548

Opinion

[Cite as Goldshtein v. Bradshaw, 2012-Ohio-3548.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

FELIKS GOLDSHTEIN : JUDGES: : Hon. Patricia A. Delaney, P.J. : Hon. Sheila G. Farmer, J. Petitioner : Hon. John W. Wise, J. : -vs- : : CASE NO. 12CA32 MARGARET BRADSHAW, WARDEN : : : OPINION Respondent :

CHARACTER OF PROCEEDING: Writ of Habeas Corpus

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: July 27, 2012

APPEARANCES:

For Petitioner: For Respondent:

Feliks Goldshtein #570541 Thelma Thomas Price RICI Associate Assistant Attorney General P.O. Box 8107 Criminal Justice Section Mansfield, Ohio 44901 150 East Gay Street, 16th Floor Columbus, Ohio 43215 Richland County, Case No. 12CA32 2

Delaney, P.J.

{¶1} Petitioner, Feliks Goldshtein, has filed a Petition for Habeas Corpus

alleging he is entitled to immediate release from incarceration because the trial

court denied his right to a “special bond.” Respondent has filed a motion to

dismiss arguing Petitioner has failed to comply with the procedural requirements

for filing a petition for writ of habeas corpus, the petition should be dismissed as

successive, and the petition fails to state a claim upon which relief may be

granted. We agree with Respondent for the following reasons.

{¶2} A writ of habeas corpus will lie in certain extraordinary circumstances

where there is an unlawful restraint of a person's liberty and there is no adequate

remedy in the ordinary course of law. Howard v. Catholic Social Serv. of

Cuyahoga Cty., Inc. (1994), 70 Ohio St.3d 141, 144, 637 N.E.2d 890, 893.

Petitioner has filed at least eight petitions requesting the issuance of a writ of

habeas corpus. The Supreme Court has held that a petition should be dismissed

as successive where a claim has been or could have been raised in a prior

petition. State ex rel. Harsh v. Sheets, 2012 WL 1957882, 1 (Ohio, 2012).

According to the instant petition, Petitioner made his initial request for a “special

bond” at the time of sentencing, which was on October 27, 2010. Subsequent to

October 27, 2010, Petitioner admits he filed six of his eight petitions for habeas

corpus. We find the claim made in the current petition could have been raised in

a prior petition. For this reason, we find the current petition is barred as a

successive petition. Richland County, Case No. 12CA32 3

{¶3} Further, the Supreme Court has held that dismissal for failure to state a

claim upon which relief may be granted is permitted if, after all factual allegations

are presumed true and all reasonable inferences are made in petitioner’s favor, it

appears beyond doubt that he could prove no set of facts entitling him to the

requested extraordinary relief in habeas corpus. Keith v. Bobby, 117 Ohio St.3d

470, 2008-Ohio-1443, 884 N.E.2d 1067, ¶ 10.

{¶4} In his complaint, Petitioner solely relies on a Federal Rule of Civil

Procedure as the basis for his entitlement to a “special bond.” The Federal Rules

of Civil Procedure are inapplicable to a state criminal case. For this reason,

Petitioner has failed to state a claim upon which relief may be granted.

{¶5} For these reasons, the Petition is dismissed.

By: Delaney, P.J. Farmer, J. and Wise, J. concur

____________________________ HON. PATRICIA A. DELANEY

____________________________ HON. SHEILA G. FARMER

____________________________ HON. JOHN W. WISE IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

FELIKS GOLDSHTEIN : CASE NO. 12CA32 : Petitioner : : -vs- : JUDGMENT ENTRY : MARGARET BRADSHAW, WARDEN : : : Respondent :

For the reasons stated in our accompanying Memorandum-Opinion, this

cause is dismissed.

Costs taxed to Petitioner.

______________________________ HON. PATRICIA A. DELANEY

______________________________ HON. SHEILA G. FARMER

______________________________ HON. JOHN W. WISE