DocketNumber: No. 05 NO 328.
Judges: PER CURIAM.
Filed Date: 3/29/2006
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} On January 10, 2006, Respondents, Jeffrey A. Wolfe, Warden of the Noble County Correctional Institution, et. al, filed a Civ.R. 12(B)(6) motion to dismiss Petitioner's petition. For the following reasons, the motion to dismiss is hereby sustained.
{¶ 3} Civ.R. 12(B)(6) authorizes a court to dismiss a cause for failure to state a claim upon which relief can be granted. The Ohio Supreme Court has generally limited habeas corpus review to matters in which the petitioner can establish that he was convicted by a court that lacked proper jurisdiction. State exrel. Pirman v. Money (1994),
{¶ 4} In the instant cause, Petitioner seeks relief under R.C. §
{¶ 5} Petitioner has attempted to cure his error by the later submission of his commitment papers, which were filed with this Court after Respondents' motion to dismiss. However, Petitioner's subsequent submission of the commitment papers does not cure this fatal flaw in his petition. Cornell v. Schotten (1994),
{¶ 6} Moreover, Petitioner's claim also lacks merit as he could have addressed his underlying claim in a direct appeal from the allegedly erroneous sentencing. A writ of habeas corpus is only available in extraordinary circumstances, when the petitioner is unlawfully restrained and has no adequate legal remedy, such as an appeal or postconviction relief. In reColeman (2002),
{¶ 7} As previously noted, Petitioner is incarcerated apparently as a result of a violation of his post-release control. Petitioner claims that the Stark County Adult Parole Authority, and not the trial court, placed him on post-release control following his incarceration for felonious assault. Thereafter, Appellant admits that he failed to report to his probation officer as required under post-release control. In fact, he pleaded guilty to escape as a result of his post-release control violation.
{¶ 8} Notwithstanding, Petitioner now claims that the Stark County Adult Parole Authority violated the separation of powers and that his period of post-release control was illegal; thus, this sanction is void.
{¶ 9} Clearly, Petitioner could have addressed these concerns in a direct appeal following his conviction and sentencing for felonious assault inasmuch as the trial court clearly explained the possibility of post-release control on the record. Appellant did not file the appropriate appeal. Accordingly, we must dismiss Petitioner's habeas corpus petition since it fails to state a claim for which relief can be granted.
{¶ 10} Final order. Clerk to serve notice as provided by the Civil Rules.
Waite, J., concurs.
Vukovich, J., concurs.
DeGenaro, J., concurs.