Westerfield v. Bracy , 2022 Ohio 1904 ( 2022 )

[Cite as Westerfield v. Bracy, 2022-Ohio-1904.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
JASON L. WESTERFIELD, CASE NO. 2022-T-0012
Petitioner,
Original Action for Habeas Corpus
-v-
CHARMAINE BRACY, WARDEN,
Respondent.
PER CURIAM
OPINION
Decided: June 6, 2022
Judgment: Petition dismissed
Jason L. Westerfield, pro se, PID# A702-804, Trumbull Correctional Institution, 5701
Burnett Road, P.O Box 901, Leavittsburg, OH 44430 (Petitioner).
David Yost, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th Floor,
Columbus, OH 43215 (For Respondent).
PER CURIAM.
{¶1} Petitioner, Jason Westerfield, seeks a writ of habeas corpus compelling
Respondent, Warden Charmaine Bracy, to release him from prison. For the following
reasons, we dismiss.
{¶2} In a writ of habeas corpus, the petitioner has the burden of proving his right
to release from prison. Chari v. Vore, 91 Ohio St.3d 323, 325, 2001-Ohio-49, 744 N.E.2d
763. “[T]he petitioner must first introduce evidence to overcome the presumption of
regularity that attaches to all court proceedings.” (Citation omitted.) Id.{¶3} Habeas corpus is an extraordinary writ and is not available when the
petitioner has an adequate remedy at law. In re Coleman, 95 Ohio St.3d 284, 2002-Ohio-
1804, 767 N.E.2d 677, ¶ 4, citing Gaskins v. Shiplevy, 76 Ohio St.3d 380, 383, 667 N.E.2d
1194 (1996).
{¶4} Respondent filed a motion to dismiss under Civ.R. 12(B)(6) for failure to
state a claim upon which relief can be granted and petitioner has responded.
{¶5} “A motion to dismiss for failure to state a claim upon which relief can be
granted tests the sufficiency of the complaint.” Volbers–Klarich v. Middletown Mgt., Inc.,
125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434, ¶ 11. To grant a motion to dismiss
under Civ.R. 12(B)(6), it must appear beyond doubt that the petitioner can prove no set
of facts in support of the claim that would entitle him to the requested relief. Ohio Bur. of
Workers' Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶
12.
{¶6} When considering a Civ.R. 12(B)(6) motion, we only review the complaint
and must accept all factual allegations as true and draw all reasonable inferences in favor
of the nonmoving party. State ex rel. Talwar v. State Med. Bd. of Ohio, 104 Ohio St.3d
290, 2004-Ohio-6410, 819 N.E.2d 654, ¶ 5. A court “cannot rely on evidence or
allegations outside the complaint.” State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206,
207, 680 N.E.2d 985 (1997).
{¶7} Here, after a jury trial, petitioner was found not guilty of aggravated burglary
but found guilty of the lesser offense of burglary. Petitioner contends that he is being
unlawfully restrained of his liberty “for a conviction in which there was no verifiable finding
of guilt; that the jury’s verdict form for the lone count of Aggravated Burglary, and its lesser
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offense of Burglary, in Case No. 17-CR-0235 was not signed by any members of the jury,
and the trial court did not poll the jury. Consequently, the court failed to establish
Westerfield’s guilt, making any subsequent ruling on the assumption of guilt a nullity.”
{¶8} However, regardless of the content of petitioner’s argument, he could have
raised this issue on direct appeal, but failed to do so. He himself acknowledged this in his
petition. He states that he timely appealed his conviction to the Third District Court of
Appeals in State v. Westerfield, 3rd Dist. Crawford No. 3-17-15, 2018-Ohio-2139 and that
the Ohio Supreme Court declined his appeal in State v. Westerfield, 153 Ohio St.3d 1505,
2018-Ohio-4285, 109 N.E.3d 1261. He conceded that “[n]one of the aforementioned
appeals addressed the issue requiring immediate release presented herein.” Thus, this
precludes the matter from being addressed via habeas corpus relief. Davie v. Edwards,
80 Ohio St.3d 170, 1997-Ohio-127, 685 N.E.2d 228 (1997); Luna v. Russell, 70 Ohio
St.3d 561, 1994-Ohio-264, 639 N.E.2d 1168 (1994).
{¶9} Finally, respondent argues that petitioner has failed to comply with R.C.
2969.25(A) which requires an inmate commencing a civil action against a government
entity to “file with the court an affidavit that contains a description of each civil action or
appeal of a civil action that the inmate has filed in the previous five years in any state or
federal court.” The description of each civil action or appeal must include:
(1) a brief description of the nature of the civil action or appeal;
(2) the case name, case number, and the court in which the civil
action or appeal was brought;
(3) The name of each party to the civil action or appeal;
(4) The outcome of the civil action or appeal, including whether the
court dismissed the civil action or appeal as frivolous or malicious
under state or federal law or rule of court, whether the court made an
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award against the inmate or the inmate's counsel of record for
frivolous conduct under section 2323.51 of the Revised Code,
another statute, or a rule of court, and, if the court so dismissed the
action or appeal or made an award of that nature, the date of the final
order affirming the dismissal or award.
{¶10} In this case, petitioner submitted an affidavit indicating he filed a federal
habeas petition in Case No. 1:19-cv-1733 and that he filed a civil claim in the Ohio Court
of Claims in Case No. 2020-00036AD. However, he failed to comply with the
requirements of R.C. 2969.25(A) because he did not name the parties to these actions or
the outcomes of these actions. Further, petitioner failed to include any reference to two
federal habeas petitions filed in Case No. 1:19-cv-911 or Case No. 1:18-cv-2725.
Petitioner acknowledges that he did not reference these federal habeas petitions and
asks the court to consider the error harmless as he voluntarily dismissed those habeas
petitions and did not realize he needed to reference them in his affidavit. However, we
need not address this issue as our substantive ruling regarding respondent’s motion to
dismiss renders this deficiency moot.
{¶11} Because petitioner had an adequate remedy at law, respondent’s motion to
dismiss is granted, and the petition is dismissed.
CYNTHIA WESTCOTT RICE, J., MATT LYNCH, J., JOHN J. EKLUND, J., concur.
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