2021 Ohio 198
Ohio Ct. App.2021Background
- Petitioner Adam M. DeVore filed a pro se petition for a writ of habeas corpus seeking immediate release, arguing Count 2 (abduction) had expired and Count 3 (domestic violence) was void for lack of subject-matter jurisdiction because the indictment alleged the offense occurred Jan 7–9, 2017 while testimony referred to a separate October incident.
- The Attorney General (on behalf of Warden Kenneth Black) moved to dismiss under Civ.R. 12(B)(6) for failure to state a claim.
- The court found DeVore failed to comply with R.C. 2969.25(A) by omitting an App.R. 26(B) reopening appeal to the Ohio Supreme Court from his affidavit of prior actions.
- The court held challenges to an indictment’s validity are not cognizable in habeas corpus and noted DeVore did not raise the indictment issue on direct appeal.
- The court also found DeVore’s maximum sentence had not expired (projected maximum July 7, 2023), so habeas relief was unavailable.
- The petition was dismissed under Civ.R. 12(B)(6); costs assessed to petitioner.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Compliance with R.C. 2969.25(A) (affidavit of prior civil actions) | DeVore omitted only a pending federal habeas in affidavit; implication that affidavit complied | AG showed DeVore omitted a 2019 App.R. 26(B) reopening appeal to Ohio Supreme Court | Court: Omission violated statute; supports dismissal |
| Validity of indictment (jurisdiction/date of alleged offense) | DeVore: conviction void because domestic-violence offense actually occurred in October and was not in indictment’s Jan dates | AG: indictment validity is a direct-appeal matter, not habeas; no court found the October theory correct | Court: Indictment defects not cognizable in habeas; DeVore waived by not raising on direct appeal |
| Reliance on appellate/federal opinions for factual claim | DeVore pointed to a 2019 federal opinion he says supports the October incident theory | AG: attached federal opinion does not support DeVore’s factual assertion; state appellate opinion contains no such finding | Court: Attached opinion does not show any court concluded the offense occurred in October; claim fails |
| Availability of habeas relief given sentence status | DeVore seeks immediate release, implying unlawful restraint despite incarceration | AG: Habeas generally available only if maximum sentence expired; DeVore’s max term had not expired | Court: DeVore’s maximum sentence had not expired (July 7, 2023); habeas unavailable; dismissal warranted |
Key Cases Cited
- State ex rel. Whitt v. Harris, 157 Ohio St.3d 384 (habeas requires unlawful restraint and entitlement to immediate release)
- State ex rel. Cannon v. Mohr, 155 Ohio St.3d 213 (same standard for habeas availability)
- Billiter v. Banks, 135 Ohio St.3d 426 (habeas not available when adequate remedy at law exists)
- Keith v. Bobby, 117 Ohio St.3d 470 (standard for Civ.R. 12(B)(6) dismissal)
- State ex rel. Swanson v. Ohio Dept. of Rehab. & Corr., 156 Ohio St.3d 408 (failure to list prior civil action in affidavit justifies dismissal)
- Wooton v. Brunsman, 112 Ohio St.3d 153 (indictment validity not cognizable in habeas)
- Luna v. Russell, 70 Ohio St.3d 561 (direct appeal is adequate remedy to challenge indictment)
- Heddleston v. Mack, 84 Ohio St.3d 213 (habeas generally for when maximum sentence expired)
- Morgan v. Ohio Adult Parole Auth., 68 Ohio St.3d 344 (same principle on habeas availability)
- Twyford, 106 Ohio St.3d 176 (App.R. 26(B) reopening is a collateral civil remedy)