McDougald v. Bowerman (Slip Opinion) , 2020 Ohio 3942 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
McDougald v. Bowerman, Slip Opinion No. 2020-Ohio-3942.]
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SLIP OPINION NO. 2020-OHIO-3942MCDOUGALD, APPELLANT, v. BOWERMAN, WARDEN, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as McDougald v. Bowerman, Slip Opinion No. 2020-Ohio-3942.]
Habeas corpus—Inmate’s claims not cognizable in habeas—Court of appeals’
dismissal of petition affirmed.
(No. 2019-1779—Submitted April 7, 2020—Decided August 6, 2020.)
APPEAL from the Court of Appeals for Lucas County,
No. L-19-1209, 2019-Ohio-4712.
________________
Per Curiam.
{¶ 1} Appellant, Jerone McDougald, appeals the dismissal of his petition
for a writ of habeas corpus against appellee, Shawn Bowerman, warden of the
Toledo Correctional Institution. We deny McDougald’s motion for leave to file a
supplemental brief and affirm the judgment of the court of appeals.
SUPREME COURT OF OHIO
I. Background
{¶ 2} In January 2007, a Scioto County grand jury indicted McDougald on
felony charges of drug possession, trafficking in drugs, possessing criminal tools,
and having a weapon while under disability. The jury convicted him of all charges,
and he was sentenced to an aggregate prison term of 20 years. The court of appeals
affirmed on direct appeal. State v. McDougald, 4th Dist. Scioto No. 07CA3157,
2008-Ohio-1398.
{¶ 3} On September 23, 2019, McDougald filed a petition for a writ of
habeas corpus in the Sixth District Court of Appeals. His petition challenged the
trial court’s jurisdiction to convict him in 2007, arguing that the indictment was
invalid because it had not been signed by the grand-jury foreman and did not
indicate a filing date. McDougald attached the indictment to his petition, but he
did not attach any documents showing his convictions or sentence.
{¶ 4} On the same day, McDougald filed a motion for leave to amend his
petition, to attach the trial court’s judgment entry. And on October 3, he filed a
motion for leave to amend his petition to add two new claims: (1) the trial court
lacked jurisdiction to convict him of drug possession and drug trafficking because
those counts in the indictment failed to state a criminal offense and (2) the trial
court lacked jurisdiction to subject McDougald’s property to forfeiture because the
indictment did not allege the necessary facts.
{¶ 5} On November 8, 2019, the court of appeals dismissed the petition.
The court held that the petition was barred by res judicata and that McDougald had
an adequate remedy at law to assert his claims. The court also determined that
McDougald had failed to file the affidavit of prior civil actions required by R.C.
2969.25(A), and it denied the motions to amend as moot.
{¶ 6} McDougald appealed.
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January Term, 2020
II. Legal analysis
{¶ 7} To be entitled to a writ of habeas corpus, a petitioner must show that
he is being unlawfully restrained of his liberty and that he is entitled to immediate
release from prison or confinement. R.C. 2725.01; State ex rel. Cannon v. Mohr,
155 Ohio St.3d 213, 2018-Ohio-4184, 120 N.E.3d 776, ¶ 10. Habeas corpus is
generally available only when the petitioner’s maximum sentence has expired and
he is being held unlawfully. Heddleston v. Mack, 84 Ohio St.3d 213, 214, 702
N.E.2d 1198 (1998). As is true for other extraordinary writs, habeas corpus is not
available when there is or was an adequate remedy in the ordinary course of the
law. Billiter v. Banks, 135 Ohio St.3d 426, 2013-Ohio-1719, 988 N.E.2d 556, ¶ 8.
“However, there is a limited exception to the adequate-remedy requirement: ‘when
a court’s judgment is void because it lacked jurisdiction, habeas is still an
appropriate remedy despite the availability of appeal.’ ” Leyman v. Bradshaw, 146
Ohio St.3d 522, 2016-Ohio-1093, 59 N.E.3d 1236, ¶ 9, quoting Gaskins v. Shiplevy,
74 Ohio St.3d 149, 151, 656 N.E.2d 1282 (1995), overruled on other grounds,
Smith v. May, 159 Ohio St.3d 106, 2020-Ohio-61, 148 N.E.3d 542, ¶ 29.
{¶ 8} A court may dismiss a case for failure to state a claim only if it
“appear[s] beyond doubt from the complaint that the plaintiff can prove no set of
facts entitling him to recovery.” O’Brien v. University Community Tenants Union,
Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus. We review the dismissal
of a habeas corpus petition under Civ.R. 12(B)(6) de novo. State ex rel. Norris v.
Wainwright, 158 Ohio St.3d 20, 2019-Ohio-4138, 139 N.E.3d 867, ¶ 5.
{¶ 9} In his merit brief, McDougald reiterates his claims that a trial court’s
jurisdiction depends on a valid indictment and that his indictment was invalid in
various respects. However, claims of an invalid indictment are not cognizable in
habeas corpus. Wooton v. Brunsman, 112 Ohio St.3d 153, 2006-Ohio-6524, 858
N.E.2d 413, ¶ 7. An inmate has an adequate remedy by way of direct appeal to
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SUPREME COURT OF OHIO
challenge the validity of an indictment. Luna v. Russell, 70 Ohio St.3d 561, 562,
639 N.E.2d 1168 (1994).
{¶ 10} In addition, the court of appeals correctly noted that McDougald’s
petition was subject to dismissal for his failure to comply with R.C. 2969.25(A),
which requires an inmate who files in the court of appeals a civil action against a
government entity or employee to file an affidavit describing each civil action or
appeal filed by the inmate within the preceding five years. Compliance with R.C.
2969.25(A) is mandatory, and the failure to comply warrants dismissal of the
action. State v. Henton, 146 Ohio St.3d 9, 2016-Ohio-1518, 50 N.E.3d 553, ¶ 3.
For these reasons, the court of appeals correctly dismissed McDougald’s petition
for a writ of habeas corpus.
{¶ 11} On March 9, 2020, McDougald filed in this court a motion for leave
to file a supplemental brief. His motion fails to explain why a supplemental brief
is necessary. Instead, it merely reiterates his claim that he should be released due
to defects in his criminal indictment. We therefore deny the motion.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
_________________
Jerone McDougald, pro se.
Dave Yost, Attorney General, and Maura O’Neill Jaite, Assistant Attorney
General, for appellee.
_________________
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