Carman v. CroucherCarman v. Croucher
JUDGMENT: PETITION DENIED
DATED: February 11, 2020
Appearances:
Ronald Carman, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Mary M. Frey, Assistant Prosecuting Attorney, for respondent.
EILEEN T. GALLAGHER, A.J.:
{¶ 1} Petitioner, Ronald Carman, seeks a writ of habeas corpus directing respondent, Gregory Croucher, to release him from custody. Carman argues that he is being held in jail pending trial on a defective indictment. The petition for writ of
I. Procedural and Factual History
{¶ 2} On December 10, 2019, Carman filed a petition for writ of habeas corpus, improperly captioned as a motion. In the petition, Carman asserts that he was indicted and charged with several felony counts in State v. Carman, Cuyahoga C.P. No. CR-16-604846 on March 30, 2016. He asserts that prior to his indictment he was incarcerated in a state prison. He was to be released from prison on April 20, 2016. However, on February 26, 2016, he was transferred from prison to the Cuyahoga County Jail. He claims that the failure to indict him within one month of his transfer from prison to county jail has caused a defect in the indictment.
{¶ 3} Respondent filed a motion for summary judgment on December 20, 2019. There, he argued that Carman’s filing is fatally defective and also fails on the merits. Carman did not respond in opposition to the motion for summary judgment. The matter is deemed fully briefed.
II. Law and Analysis
A. Standards
{¶ 4} “A writ of habeas corpus ‘is warranted in certain extraordinary circumstances “where there is an unlawful restraint of a person’s liberty and there is no adequate remedy in the ordinary course of law.”’” State ex rel. Kerr v. Turner, Slip Opinion No. 2019-Ohio-4760, ¶ 5, quoting Johnson v. Timmerman-Cooper, 93 Ohio St.3d 614, 616, 757 N.E.2d 1153 (2001), quoting Pegan v. Crawmer, 76 Ohio St.3d 97, 99, 666 N.E.2d 1091 (1996).
{¶ 5} The matter is before this court on respondent’s motion for summary judgment. Pursuant to
B. Procedural Defects
1. Proper Party
{¶ 6}
{¶ 7} Here, Carman has asserted, by motion rather than petition, that he is being detained in the Cuyahoga County Jail. Those held in a county jail fall under the auspices of the county sheriff where the jail is located. Whitman v. Shaffer, 8th Dist. Cuyahoga No. 94486, 2010-Ohio-446, ¶ 3. Carman has not named the
2. Civ.R. 10 Caption
{¶ 8} The Ohio Rules of Civil Procedure apply to original actions in the court of appeals unless clearly inapplicable. Loc.App.R. 45(A)(3).
{¶ 9} Here, Carman did not include any addresses for the parties in the caption of his filing. This constitutes sufficient reason to grant respondent’s motion for summary judgment. Id.
3. R.C. 2969.25
{¶ 10} An inmate filing an original action in a court of appeals against a government entity or employee must comply with
{¶ 11}
{¶ 12} Carman filed a list of prior actions with a description of each, but the document was not notarized. This is insufficient to meet the affidavit requirement set forth in
{¶ 13} One of the other procedural requirements imposed by this statute is if an inmate seeks the waiver of the prepayment of the filing fee, the inmate must file an affidavit of waiver and affidavit of indigency that includes the following:
A statement that sets forth the balance in the inmate account of the inmate for each of the preceding six months, as certified by the institutional cashier;
A statement that sets forth all other cash and things of value owned by the inmate at that time.
{¶ 14} Carman filed an affidavit of indigency, but failed to include a statement certified by the institutional cashier setting forth the balance in Carman’s account for the previous six months. This is required by
C. Availability of Relief in Habeas Corpus
{¶ 15} Even if this court ignores these fatally defective procedural irregularities, Carman is still not entitled to relief in habeas corpus.
{¶ 16} Carman claims entitlement to relief in habeas corpus based on an argument that relies on
{¶ 17} Generally, under
{¶ 18} Carman claims the Sixth District Court of Appeals cited to the federal act in a case — State v. Kennedy, 6th Dist. Wood No. WD-81-19, 1981 Ohio App. LEXIS 13301 (Dec. 4, 1981). In that case, a dissenting judge cited to
{¶ 19} If Carman is asserting a violation of his speedy trial rights through this action, such a claim is not cognizable in habeas corpus. Clarke v. McFaul, 8th Dist. Cuyahoga No. 89436, 2007-Ohio-1592, ¶ 7, citing State ex rel. Brantley v. Ghee, 80 Ohio St.3d 287, 685 N.E.2d 1243 (1997); Prather v. Brigano, 86 Ohio St.3d 609, 716 N.E.2d 197 (1999); Washington v. Tyson-Parker, 101 Ohio St.3d 131, 2004-Ohio-298, 802 N.E.2d 655; and In re Singer, 45 Ohio St.2d 130, 341 N.E.2d 849 (1976). “Appeal provides an adequate remedy at law, precluding habeas relief.” Id. citing Moore v. Kochevar, 8th Dist. Cuyahoga No. 84588, 2004-Ohio-2687.
{¶ 20} More generally, a claimed defect in the indictment can be raised on appeal, precluding relief in habeas corpus. Id. at ¶ 10, citing Marshall v. Lazaroff, 77 Ohio St.3d 443, 674 N.E.2d 1378 (1997); State ex rel. Simpson v. Lazaroff, 75 Ohio St.3d 571, 664 N.E.2d 937 (1996); and State ex rel. Hadlock v. McMackin, 61 Ohio St.3d 433, 575 N.E.2d 184 (1991).
III. Conclusion
{¶ 21} Carman’s filing contains numerous fatal procedural defects that require denial of relief. Further, even if the arguments raised are considered, they do not, as a matter of law, satisfy the extraordinary requirements for relief in habeas corpus. Accordingly, respondent’s motion for summary judgment is granted.
{¶ 22} Petition denied.
EILEEN T. GALLAGHER, ADMINISTRATIVE JUDGE
MARY J. BOYLE, J., and
LARRY A. JONES, SR., J., CONCUR