Jordan v. Johnson , 2013 Ohio 3679 ( 2013 )

[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
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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
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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
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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-
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(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.
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