ROBERT L. JOHNSON, Pеtitioner, - vs - BRIGHAM SLOAN, WARDEN, Respondent.
CASE NO. 2016-A-0009
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY, OHIO
August 15, 2016
2016-Ohio-5375
Judgment: Petition dismissed.
Stephen P. Hanudel, 124 Middle Avenue, Suite 900, Elyria, OH 44035 (For Petitioner).
Mike DeWine, Ohio Attorney General, and Stephanie L. Watson, Assistant Attornеy General, Criminal Justice Section, 150 East Gay Street, 16th Floor, Columbus, OH 43215 (For Respondent).
PER CURIAM.
{¶1} Robert L. Johnson petitions this court to issue a writ of habeas cоrpus to Brigham Sloan, Warden of the Lake Erie Correctional Institution. Mr. Johnson contends Warden Sloan is confining him in contravention of law due to аn improper juvenile bindover procedure. For the reasons that follow, we dismiss the petition.
{¶2} Mr. Johnson was bound over from the juvenile court in 1987 and pled guilty to one count of aggravated robbery, with a gun specification, and one count of aggravated murder, with a felony murder specification, in Cuyahoga County, Ohio. In
{¶3} Mr. Johnson was permitted to pursue a delayed direct appeal in the Eighth District Court of Appeals, which affirmed the trial court‘s judgment. State v. Johnson, 8th Dist. Cuyahoga Nos. 55295, 55811, & 55812, 1989 Ohio App. LEXIS 1525 (Apr. 20, 1989). His subsequent application for reopening was denied. State v. Johnson, 8th Dist. Cuyahoga Motion No. 16591, 2000 Ohio App. LEXIS 3617 (Apr. 20. 1989). The Ohio Supreme Court declined a discretionary appeal.
{¶4} Mr. Johnson later filed a motion for relief from judgment, which was denied by the trial court. He then filed a motion for leave to file a delayed motion for new trial, which the trial cоurt granted, but the resulting motion for new trial was denied. The Eighth District affirmed the trial court‘s decision on appeal. State v. Johnson, 8th Dist. Cuyahoga No. 80247, 2002-Ohio-2712. The Supreme Court of Ohio again declined a discretionary appeal.
{¶5} In 2003, Mr. Johnson filed a petition for a writ of habeas corpus in the United States District Court, Northern District of Ohiо, which was dismissed. Mr. Johnson‘s petition before this court indicates he was subsequently denied a certificate of appealability by the United Statеs Court of Appeals for the Sixth Circuit.
{¶6} Mr. Johnson filed the instant petition for habeas corpus on January 29, 2016. According to Mr. Johnson‘s petition, he never raised the issue of an improper bindover procedure in any of the above-mentioned proceedings. This court issued an alternative writ on February 29, 2016. On March 24, 2016, Warden Sloan filed a Return
{¶7} A writ of habeas corpus is a civil action under Ohio law. Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, ¶7. Therefore, “[t]hе Civil Rules may apply to habeas cases where not ‘clearly inapplicable’ by their nature.” Gaskins v. Shiplevy, 74 Ohio St.3d 149, 150 (1995) (”Gaskins I“), quoting Pegan v. Crawmer, 73 Ohio St.3d 607, 608 (1995).
{¶8} Under
{¶9} A writ of habeas corpus is necessary in certain exceptional cirсumstances where there is an unlawful restraint of an individual‘s liberty. Johnson v. Timmerman-Cooper, 93 Ohio St.3d 614, 616 (2001). Habeas corpus relief, like other extraordinary writ actions, is generally not avаilable to a petitioner where there is or was an adequate remedy at law. State ex rel. Fryerson v. Tate, 84 Ohio St.3d 481, 485 (1999) (”Fryerson II“), citing Gaskins v. Shiplevy, 76 Ohio St.3d 380, 383 (1996) (”Gaskins II“). The
{¶10} When alleging a trial court lacked subject matter jurisdiction, the habeas corpus рetitioner must establish the lack of jurisdiction was “patent and unambiguous.” Ross v. Saros, 99 Ohio St.3d 412, 2003-Ohio-4128, ¶14, citing Agee v. Russell, 92 Ohio St.3d 540, 544 (2001). This court has previously explained the concept of a “patеnt and unambiguous” lack of jurisdiction:
[I]f there [is] no set of facts under which a trial court * * * could have jurisdiction over a particular case, the alleged jurisdictional defect will always be considered patent and unambiguous. On the other hand, if the court * * * generally has subject matter jurisdiction оver the type of case in question and [its] authority to hear that specific action [depends] on the specific facts before [it], the jurisdictional defect is not obvious and the [trial court] should be allowed to decide the jurisdictional issue.
State ex rel. The Leatherworks Partnership v. Stuard, 11th Dist. Trumbull No. 2002-T-0017, 2002-Ohio-6477, ¶19.
{¶11} These requirements have been aрplied to habeas corpus petitions that allege unlawful restraint due to an improper bindover. See, e.g., Gaskins I, supra; State ex rel. Harris v. Anderson, 76 Ohio St.3d 193 (1996); Fryerson II, supra; In re Baker v. Stewart, 116 Ohio App.3d 580 (10th Dist.1996); and Snitzky, supra. Again, habeas corpus may lie only when the challenged bindover procedure is void, such that the trial
{¶12} Here, the juvenile court issuеd its bindover judgments in 1987. At that time,
{¶13} Mr. Jоhnson alleges the Cuyahoga County Court of Common Pleas did not have jurisdiction to convict and sentence him due to a purported failure tо administer the physical examination prior to his amenability hearing and bindover from juvenile court. Mr. Johnson concedes he received two mental examinations, both of which indicated he was amenable to bindover.
{¶14} The bindover judgments issued by the juvenile court indicate that a physicаl examination was, in fact, administered. Although Mr. Johnson now asserts such examination never took place, the entries were sufficient to invokе the jurisdiction of the common pleas court to convict and sentence him. The common pleas court had
{¶15} The bindover judgments, on their face, reflect that the requirements for а proper bindover were met; therefore, any alleged lack of jurisdiction was not “patent and unambiguous.” Mr. Johnson possessed an adequate remedy at law to raise the physical examination issue in his direct appeal from his conviction and sentence, which he did not do. Therefore, even presuming these allegations as true, Mr. Johnson can prove no set of facts that would entitle him to relief, by means of а writ of habeas corpus, for lack of a physical examination prior to bindover.
{¶16} For this reason, Warden Sloan‘s motion to dismiss has merit, and Mr. Johnson‘s petition for a writ of habeas corpus is hereby dismissed.
CYNTHIA WESTCOTT RICE, P.J., DIANE V. GRENDELL, J., TIMOTHY P. CANNON, J., concur.