State ex rel. Russo v. Tibbals , 2012 Ohio 158 ( 2012 )

[Cite as State ex rel. Russo v. Tibbals, 2012-Ohio-158.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97190
STATE OF OHIO, EX REL.,
VINCENT RUSSO
PETITIONER
vs.
WARDEN TERRY TIBBALS
RESPONDENT
JUDGMENT:
PETITION DISMISSED
Writ of Habeas Corpus
Motion Nos. 447890
Order No. 451175
RELEASED DATE: January 13, 2012
FOR PETITIONER
Vincent Russo
26958 Schady Road
Olmsted Falls, OH 44138
ATTORNEY FOR RESPONDENT
Jerri L. Fosnaught
Assistant Attorney General
Criminal Justice Section
150 East Gay Street, 16th Floor
Columbus, Ohio 43215
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Petitioner, Vincent Russo, avers in his petition that he is a
prisoner at Mansfield Correctional Institution (“ManCI”) where respondent is
the warden. Russo also avers that ManCI is in Richland County. Russo
claims that his sentence expired on August 19, 2011 and requests relief in
habeas corpus to compel respondent to release Russo immediately. On the
day Russo filed his petition in habeas corpus, he also filed a “notice of
transfer” indicating that he would be transferred to the Cuyahoga County
Jail on or about August 17, 2011.
{¶ 2} Respondent has filed a motion to dismiss. Russo has not opposed
the motion.
{¶ 3} Attached to the motion to dismiss is a copy of Russo’s “Expiration
of Sentence” form including the signatures of both respondent and Russo.
The form indicates that Russo was released on August 19, 2011. Compare
State ex rel. Womack v. Marsh, 128 Ohio St.3d 303, 2011-Ohio-229, 943
N.E.2d 1010 (the court of appeals may take judicial notice of an entry
attached to a judge’s motion to dismiss supporting the judge’s claim that an
action in mandamus is moot). Respondent also argues that this action is
moot because Russo is not in custody. As noted above, Russo acknowledged
in his “notice of transfer” that he was transferred to Cuyahoga County Jail.
We agree, therefore, that he is no longer in respondent’s custody.
{¶ 4} Additionally, Russo was required to file any action in habeas
corpus against respondent in Richland County. “This court does not possess
the authority to order the release of a person from prison unless the prison
lies within our territorial jurisdiction, which is Cuyahoga County.”
(Citations omitted.) Thomas v. Tibbals, 8th Dist. No. 97519,
2011-Ohio-6087, 2011 WL 5869771¶ 2. The lack of territorial jurisdiction
provides another basis for dismissing this action.
{¶ 5} Accordingly, respondent’s motion to dismiss is granted. Petitioner
to pay costs. The clerk is directed to serve upon the parties notice of this
judgment and its date of entry upon the journal. Civ.R. 58(B).
Petition dismissed.
KATHLEEN ANN KEOUGH, JUDGE
MARY EILEEN KILBANE, P.J., and
SEAN C. GALLAGHER, J., CONCUR.