Jordan v. Johnson

2013 Ohio 3679

• Court: Ohio Court of Appeals
• Decided: August 26, 2013
• Docket: CA2013-03-007
• Status: Published

Opinion

[Cite as Jordan v. Johnson, 2013-Ohio-3679.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

MADISON COUNTY

JOSEPH JORDAN, : CASE NO. CA2013-03-007 Petitioner-Appellant, : OPINION : 8/26/2013 - vs - :

ROD JOHNSON, WARDEN, :

Respondent-Appellee. :

CIVIL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS Case No. CVH20130019

Joseph Jordan, #A628031, Madison Correctional Institution, P.O. Box 740, London, Ohio 43140-0740, petitioner-appellant, pro se

Maura O'Neill Jaite, Criminal Justice Section, 150 East Gay Street, 16th Floor, Columbus, Ohio 43215, for respondent-appellee

M. POWELL, J.

{¶ 1} Petitioner-appellant, Joseph Jordan, appeals pro se from a decision of the

Madison County Court of Common Pleas dismissing his petition for a writ of habeas corpus

requesting his immediate release from prison. For the reasons outlined below, we affirm.

{¶ 2} Jordan is currently incarcerated at the Madison Correctional Institution in

Madison County, Ohio. In April 2010, Jordan was sentenced by the Warren County Court of Madison CA2013-03-007

Common Pleas to serve ten years in prison after pleading guilty to five separate offenses

including trafficking in crack cocaine, ecstasy, and methadone, illegally manufacturing drugs,

and possessing weapons under disability (the "Warren County Case"). Jordan did not timely

appeal his Warren County Case and his motion to file a delayed appeal was denied by this

court in November 2011. State v. Jordan, 12th Dist. Warren No. CA2011-08-092 (Nov. 9,

2011).

{¶ 3} In November 2010, Jordan was also convicted and sentenced in the

Montgomery County Court of Common Pleas for possession of cocaine (the "Montgomery

County Case"). For this conviction, Jordan was sentenced to serve two years in prison to be

served concurrently to his sentence in the Warren County Case. Thus, as a result of both

the Warren County and Montgomery County Cases, Jordan has a maximum release date of

March 1, 2020.

{¶ 4} On January 14, 2013, Jordan filed a R.C. Chapter 2725 petition for a writ of

habeas corpus, alleging that he was being unlawfully confined. In his petition, Jordan

claimed that the Warren County indictment was defective and that the Warren County Court

of Common Pleas lacked venue over the Warren County Case, as charges were indicted in

that case that did not occur in Warren County. As part of his petition, Jordan attached his

commitment papers from his Warren County Case but failed to attach any commitment

papers relating to the Montgomery County Case.

{¶ 5} In February 2013, upon motion from respondent-appellee, Rod Johnson,

Warden of Madison Correctional Institution (the "Warden"), the trial court dismissed Jordan's

petition on the basis that it did not satisfy several procedural requirements.

{¶ 6} Jordan now appeals from that decision, raising two assignments of error:

{¶ 7} Assignment of Error No. 1:

{¶ 8} DID THE TRIAL [COURT] ERROR (SIC) BY DISMISSING JORDAN'S WRIT -2- Madison CA2013-03-007

OF HABEAS CORPUS WHEN CLEARLY THE WRIT WAS FILED ACCORDING TO THE

RULES PROVIDED BY LAW[?]

{¶ 9} Assignment of Error No. 2:

{¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF [JORDAN], BY

DENYING HIS WRIT OF HABEAS CORPUS, WHEN HE DEMONSTRATED THAT HE WAS

ENTITLED IMMEDIATE (SIC) RELEASE FROM CONFINEMENT.

{¶ 11} In his first assignment of error, Jordan argues the trial court erred in dismissing

his petition for a writ of habeas corpus on procedural grounds. Specifically, Jordan contends

the trial court improperly granted the Warden's Civ.R. 12(B)(6) motion to dismiss based upon

"technical flaws" in Jordan's petition.

{¶ 12} "'A writ of habeas corpus is an extraordinary remedy available where there is an

unlawful restraint of a person's liberty and no adequate remedy at law.'" Powers v.

Timmerman-Cooper, 12th Dist. Madison No. CA2013-01-002, 2013-Ohio-2865, ¶ 10, quoting

Maxwell v. Jones, 12th Dist. Butler No. CA2009-07-179, 2010-Ohio-1633, ¶ 7. "Habeas

corpus is generally appropriate in the criminal context only if the petitioner is entitled to

immediate release from prison." Id., citing Larsen v. State, 92 Ohio St.3d 69 (2001).

{¶ 13} "The Ohio Supreme Court has addressed the propriety of a Civ.R. 12(B)(6)

motion in a habeas action." Id. at ¶ 11. "'R.C. Chapter 2725 prescribes a basic, summary

procedure for bringing a habeas corpus action.'" Id., quoting Waites v. Gansheimer, 110

Ohio St.3d 250, 2006-Ohio-4358, ¶ 8. "In turn, 'if the court decides that the petition states a

facially valid claim, it must allow the writ.'" Id., quoting Chari v. Vore, 91 Ohio St.3d 323, 327

(2001). However, "if the petition states a claim for which habeas corpus relief cannot be

granted, the court should not allow the writ and should dismiss the petition." Id., quoting

State ex rel. Sneed v. Anderson, 114 Ohio St.3d 11, 2007-Ohio-2454, ¶ 5.

{¶ 14} In this case, Jordan's petition was dismissed because he (1) failed to attach all -3- Madison CA2013-03-007

of his relevant commitment papers pursuant to R.C. 2725.04(D), (2) failed to properly verify

his petition pursuant to R.C. 2725.04, (3) failed to attach a prior civil action affidavit pursuant

to R.C. 2969.25(A), (4) failed to pay the requisite filing fees or file a proper fee waiver request

pursuant to R.C. 2969.22 and R.C. 2969.25(C), and (5) failed to properly caption his petition

under Civ.R. 10(A).

{¶ 15} R.C. 2725.04 states the following:

Application for the writ of habeas corpus shall be by petition, signed and verified either by the party for whose relief it is intended, or by some person for him, and shall specify:

(A) That the person in whose behalf the application is made is imprisoned, or restrained of his liberty;

(B) The officer, or name of the person by whom the prisoner is so confined or restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation and the person who is served with the writ is deemed the person intended;

(C) The place where the prisoner is so imprisoned or restrained, if known;

(D) A copy of the commitment or cause of detention of such person shall be exhibited, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or detention is without legal authority, such fact must appear.

See Rideau v. Russell, 12th Dist. Warren No. CA2000-07-065, 2001 WL 409429, *1 (Apr. 23,

2001).

{¶ 16} In order to withstand a motion to dismiss, "a petition for writ of habeas corpus

must be signed and verified as required by R.C. 2725.04." Id. at *2. Failure to comply with

this provision "cannot be remedied by a memorandum in opposition to motion to dismiss or a

post-judgment motion." Id., citing Russell v. Mitchell, 84 Ohio St.3d 328, 329 (1999); Boyd v.

Money, 82 Ohio St.3d 388, 389 (1998). For purposes of R.C. 2725.04, "verification" means a

"formal declaration made in the presence of an authorized officer, such as a notary public, by

-4- Madison CA2013-03-007

which one swears to the truth of the statements in the document." Chari v. Vore, 91 Ohio

St.3d at 327, citing Garner, Black's Law Dictionary (7 Ed.1999) 1556.

{¶ 17} Jordan's petition for a writ of habeas corpus was not verified in this case.

Although, as Jordan points out, his affidavit of indigency was properly notarized, nowhere in

Jordan's actual petition does he swear to the truth of the statements in the document. As the

petition was not properly verified pursuant to R.C. 2725.04, Jordan's petition was properly

dismissed on this ground alone. See Rideau at *2. Because we find that Jordan's failure to

follow R.C. 2725.04 warranted dismissal of the petition on verification grounds, we need not

review the other grounds upon which the trial court based its dismissal. Id. at fn. 1, citing

Smith v. Walker, 83 Ohio St.3d 431, 432-433 (1998). Nevertheless, we additionally find that

Jordan failed to comply with R.C. 2969.25(A) by attaching a prior civil action affidavit, failed to

comply with R.C. 2969.25(C) by filing an affidavit seeking waiver of the filing fee, and did not

properly caption his petition pursuant to Civ.R. 10(A). See State ex rel. Zanders v. Ohio

Parole Bd., 82 Ohio St.3d 421, 422 (1998); State ex rel. Sherrills v. State, 91 Ohio St.3d 133,

133 (2001); Hazel v. Knab, 130 Ohio St.3d 22, 2011-Ohio-4608, ¶ 1.

{¶ 18} Finally, we find that, had Jordan complied with all the requirements of R.C.

2725.04, R.C. 2969.22, R.C. 2969.25, and Civ.R. 10(A) in filing his petition for a writ of

habeas corpus, Jordan's claims would have failed. In his second assignment of error, Jordan

claims that the Warren County Grand Jury improperly indicted him on charges that allegedly

occurred outside of Warren County. Jordan further argues that the Warren County Court of

Common Pleas did not have proper venue in this case, as several charges in the indictment

allegedly took place outside of Warren County.

{¶ 19} The Ohio Supreme Court has "long held that habeas corpus will not be

substituted for appeal or post-conviction relief." Cornell v. Schotten, 69 Ohio St.3d 466, 467

(1994), citing In re Piazza, 7 Ohio St.2d 102 (1966), and Bellman v. Jago, 38 Ohio St.3d 55 -5- Madison CA2013-03-007

(1988). "Habeas corpus is not available to challenge either the validity or the sufficiency of

an indictment." Luna v. Russell, 70 Ohio St.3d 561, 562, (1994), citing Hammond v. Dallman,

63 Ohio St.3d 666 (1992), State v. Wozniak, 172 Ohio St. 517, 522-523 (1961), and Wilson

v. Rogers, 68 Ohio St.3d 130 (1993); McGee v. Sheldon, 132 Ohio St.3d 89, 2012-Ohio-

2217, ¶ 1. In addition, the Ohio Supreme Court has held that venue is not a question

"cognizable in habeas corpus" but is an issue which "must be raised on appeal." Cook v.

Maxwell, 2 Ohio St.2d 107, 109 (1965); see also State ex rel. Samoth-El v. Miller, 7th Dist.

Belmont No. 12 BE 23, 2012-Ohio-5611, 2012 WL 6012896, *2 (Nov. 5, 2012).

{¶ 20} As Jordan possessed an adequate remedy at law by way of direct appeal to

raise his contentions, he was not entitled to the extraordinary relief of habeas corpus. See

Luna at 562. Accordingly, Jordan's assignments of error are overruled.

{¶ 21} Judgment affirmed.

HENDRICKSON, P.J., and PIPER, J., concur.

-6-