Pope v. Bracy , 2022 Ohio 1013 ( 2022 )

[Cite as Pope v. Bracy, 2022-Ohio-1013.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
KENNETH POPE, JR., CASE NO. 2021-T-0053
Petitioner,
Original Action for Writ of Habeas Corpus
-v-
CHARMAINE BRACY, WARDEN,
Respondent.
PER CURIAM
OPINION
Decided: March 28, 2022
Judgment: Petition dismissed
Kenneth Pope, Jr., pro se, PID# A666-773, Trumbull Correctional Institution, P.O. Box
901, Leavittsburg, OH 44430 (Petitioner).
Dave Yost, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th Floor,
Columbus, OH 43215 (For Respondent).
PER CURIAM.
{¶1} Petitioner, Kenneth Pope, Jr., seeks a writ of habeas corpus compelling
Respondent, Warden Charmaine Bracy, to release him from prison. For the following
reasons, we dismiss.
{¶2} In a writ of habeas corpus, the petitioner has the burden of proving his right
to release from prison. Chari v. Vore, 91 Ohio St.3d 323, 325, 2001-Ohio-49, 744 N.E.2d
763. “[T]he petitioner must first introduce evidence to overcome the presumption of
regularity that attaches to all court proceedings.” (Citation omitted.) Id.{¶3} Habeas corpus is an extraordinary writ and is not available when the
petitioner has an adequate remedy at law. In re Coleman, 95 Ohio St.3d 284, 2002-Ohio-
1804, 767 N.E.2d 677, ¶ 4, citing Gaskins v. Shiplevy, 76 Ohio St.3d 380, 383, 667 N.E.2d
1194 (1996).
{¶4} Respondent moves to dismiss under Civ.R. 12(B)(6) for failure to state a
claim upon which relief can be granted.
{¶5} “A motion to dismiss for failure to state a claim upon which relief can be
granted tests the sufficiency of the complaint.” Volbers–Klarich v. Middletown Mgt., Inc.,
125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434, ¶ 11. To grant a motion to dismiss
under Civ.R. 12(B)(6), it must appear beyond doubt that the petitioner can prove no set
of facts in support of the claim that would entitle him to the requested relief. Ohio Bur. of
Workers' Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶
12.
{¶6} When considering a Civ.R. 12(B)(6) motion, we only review the complaint
and must accept all factual allegations as true and draw all reasonable inferences in favor
of the nonmoving party. State ex rel. Talwar v. State Med. Bd. of Ohio, 104 Ohio St.3d
290, 2004-Ohio-6410, 819 N.E.2d 654, ¶ 5. A court “cannot rely on evidence or
allegations outside the complaint.” State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206,
207, 680 N.E.2d 985 (1997).
{¶7} Here, Petitioner contends that his sentence is void because all jurors did
not verbally respond during polling. Specifically, the trial court’s transcript pertaining to
polling the jury indicates that all jurors were asked if they agreed with the verdict, but the
transcript does not indicate a response from jurors three and eleven.
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{¶8} Petitioner argues that because the transcript does not indicate a response
from all jurors, we cannot assume all jurors agreed with the verdict.
{¶9} Regardless of the content of Petitioner’s argument, he could have raised
this issue on direct appeal, but failed to do so. Thus, this precludes the matter from being
addressed via habeas corpus relief. Davie v. Edwards, 80 Ohio St.3d 170, 1997-Ohio-
127, 685 N.E.2d 228 (1997); Luna v. Russell, 70 Ohio St.3d 561, 1994-Ohio-264, 639
N.E.2d 1168 (1994).
{¶10} Because Petitioner had an adequate remedy at law, Respondent’s motion
to dismiss is granted, and the petition is dismissed.
THOMAS R. WRIGHT, P.J., MATT LYNCH, J., JOHN J. EKLUND, J., concur.
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