Jury v. Miller

2015 Ohio 2998

• Court: Ohio Court of Appeals
• Decided: July 22, 2015
• Docket: 15 BE 33
• Status: Published

Opinion

[Cite as Jury v. Miller, 2015-Ohio-2998.] STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

BRIAN JURY ) CASE NO. 15 BE 33 ) PETITIONER ) ) VS. ) OPINION AND ) JUDGMENT ENTRY MICHELE MILLER, WARDEN ) ) RESPONDENT )

CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus

JUDGMENT: Dismissed.

APPEARANCES:

For Petitioner: Brian Jury, Pro se #654-969 Belmont Correctional Institution 68518 Bannock Rd. P.O. Box 540 St. Clairsville, Ohio 43950

For Respondent: Atty. Mike DeWine Attorney General of Ohio Atty. Paul Kerridge Assistant Attorney General Criminal Justice Section 150 East Gay Street, 16th Floor Columbus, Ohio 43215

JUDGES:

Hon. Mary DeGenaro Hon. Gene Donofrio Hon. Carol Ann Robb Dated: July 22, 2015 [Cite as Jury v. Miller, 2015-Ohio-2998.] PER CURIAM.

{¶1} On May 14, 2015, Petitioner Brian Jury filed a pro se “Habeas Corpus

Petition by State Prisoner” claiming the Erie County Court of Common Pleas lacked

jurisdiction because there was “never an initial charging instrument.” On May 29,

2015, Respondent Michelle Miller, Warden of the Belmont Correctional Institution in

Saint Clairsville, Ohio answered by filing a motion to dismiss.

{¶2} Jury was convicted of kidnapping, felonious assault, and two counts of

rape in July of 2014. The trial court sentenced Jury to thirty-six years imprisonment.

On August 6, 2014, Jury filed a notice of appeal in the Sixth District Court of Appeals.

This appeal is currently pending1.

{¶3} Individuals who are “unlawfully restrained” may prosecute a writ of

habeas corpus. R.C. 2725.01. Application is made by petition, which must contain

certain information and enumerated items. R.C. 2725.04. If the court decides that

the petition states a facially valid claim, it must allow the writ. R.C. 2725.06.

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.” Pegan

v. Crawmer, 73 Ohio St.3d 607, 609, 1995-Ohio-175, 653 N.E.2d 659.

{¶4} “Habeas corpus is not available to challenge either the validity or the

sufficiency of an indictment.” (Internal citations omitted.) Luna v. Russell, 70 Ohio

St.3d 561, 562, 1994-Ohio-264, 639 N.E.2d 1168. Jury possesses an adequate

remedy, namely: to raise this issue in his pending direct appeal. State ex rel.

1 On June 11, 2015, Jury filed a fourth motion for extension of time which has not been granted as of the time of drafting this entry. -2-

Jackson v. Allen, 65 Ohio St.3d 37, 599 N.E.2d 696 (1992). As such, Jury's petition

for writ of habeas corpus is hereby dismissed. Costs taxed against Petitioner. Final

order. Clerk to serve notice on the parties as required by the Ohio Rules of Civil

Procedure.

DeGenaro, J., concurs.

Donofrio, P.J., concurs.

Robb, J., concurs.