DeVore v. Black (Slip Opinion), 2021 Ohio 3153

DeVore was convicted in Ashland County of abduction and domestic violence and sentenced to consecutive 36‑month terms; the Fifth District affirmed his convictions.
He filed an App.R. 26(B) application to reopen his direct appeal asserting appellate counsel was ineffective for not arguing abduction and domestic violence were allied offenses; the court of appeals denied reopening, finding the crimes were separate in time and location.
DeVore then filed a habeas corpus complaint seeking immediate release, arguing his domestic‑violence conviction was for uncharged conduct (a different incident than in the indictment) and therefore void; he claimed he had already served the abduction term.
Warden Black moved to dismiss under Civ.R. 12(B)(6); the Fifth District dismissed the habeas petition for (1) noncompliance with R.C. 2969.25(A) (failure to list his prior App.R.26(B) appeal) and (2) failure to state a cognizable habeas claim.
The Ohio Supreme Court affirmed dismissal, holding that DeVore’s theory—that he was convicted of an uncharged offense—attacks the sufficiency of the indictment and is not cognizable in habeas corpus; Justice Kennedy concurred in the judgment only, disagreeing that App.R.26(B) is a “civil action” for R.C. 2969.25(A) purposes.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether DeVore’s habeas should be dismissed for failing to comply with R.C. 2969.25(A) by not listing his App.R.26(B) appeal	App.R.26(B) is not a "civil action" and need not be listed	DeVore omitted a prior appeal and thus failed the affidavit requirement	Majority affirmed dismissal on this ground; Kennedy J. concurred in judgment only, arguing App.R.26(B) is not a civil action for R.C. 2969.25(A) and dismissal on that basis was error
Whether a claim that a defendant was convicted of an uncharged offense is cognizable in habeas corpus	DeVore: domestic‑violence conviction rested on uncharged conduct and is void, entitling him to release	Black: this is an attack on indictment sufficiency (nonjurisdictional); habeas is not the proper remedy; ordinary appellate/postconviction remedies are available	Court held such a claim attacks indictment sufficiency and is not cognizable in habeas; dismissal affirmed
When habeas relief is available for criminal convictions	DeVore sought immediate release as remedy for alleged void conviction	State relied on limits of habeas relief and availability of ordinary remedies	Court reiterated habeas relief limited to expired maximum sentence or jurisdictional defects; nonjurisdictional errors require ordinary remedies

Leyman v. Bradshaw, 146 Ohio St.3d 522, 59 N.E.3d 1236 (habeas ordinarily available only when maximum sentence expired or court lacked jurisdiction)
Gunnell v. Lazaroff, 90 Ohio St.3d 76, 734 N.E.2d 829 (attacks on indictment sufficiency are not cognizable in habeas)
Kneuss v. Sloan, 146 Ohio St.3d 248, 54 N.E.3d 1242 (habeas unavailable for nonjurisdictional errors when adequate remedy exists)
State ex rel. Henton v. (Wainwright), 146 Ohio St.3d 9, 50 N.E.3d 553 (compliance with R.C. 2969.25(A) is mandatory; failure warrants dismissal)
State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (establishing App.R. 26(B) remedy for ineffective assistance of appellate counsel)
In re Wyckoff's Estate, 166 Ohio St. 354, 142 N.E.2d 660 (distinguishing civil actions from special proceedings)