Stewart v. Banks

[Cite as Stewart v. Banks, 2012-Ohio-4036.]
STATE OF OHIO, NOBLE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
KEVIN M. STEWART ) CASE NO. 12 NO 393
)
PETITIONER )
)
VS. ) OPINION AND
) JUDGMENT ENTRY
EDWARD BANKS, WARDEN )
NOBLE CORRECTIONAL )
INSTITUTION )
)
RESPONDENT )
CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus
JUDGMENT: Dismissed.
APPEARANCES:
For Petitioner: Kevin M. Stewart, Pro se
#614-069
Madison Correctional Institution
P.O. Box 740
London, Ohio 43140
For Respondent: Atty. Mike DeWine
Attorney General of Ohio
Atty. Maura O’Neill Jaite
Senior Assistant Attorney General
Criminal Justice Section
150 East Gay Street, 16th Floor
Columbus, Ohio 43215
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: August 27, 2012
[Cite as Stewart v. Banks, 2012-Ohio-4036.]
PER CURIAM.
{¶1} Petitioner Kevin M. Stewart filed a pro se petition for writ of habeas
corpus with this Court. Petitioner was convicted in Delaware County, Ohio, for
possession of drugs, a third degree felony pursuant to R.C. 2925.11(A). Petitioner
was sentenced to four years in prison, and is now incarcerated at the Noble
Correctional Institution. Petitioner claims that he is being improperly imprisoned
because the trial court used the wrong sentencing statute when it determined the
penalty in this case in September of 2011. Petitioner contends that the trial court
should have applied an amended version of R.C. 2929.14 that reduced the maximum
penalty for non-specified third degree felonies from five years to three years. The
amendment was effective as of September 30, 2011. Petitioner submits that he
should receive the benefit of the reduced sentencing provision pursuant to R.C.
1.58(B), which states: “If the penalty, forfeiture, or punishment for any offense is
reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or
punishment, if not already imposed, shall be imposed according to the statute as
amended.” Because the trial court imposed a prison term of four years instead of
three years or less, Petitioner believes that the sentence is void and that his case
should be remanded for proper sentencing under the amended sentencing statute.
{¶2} Respondent has filed a motion to dismiss, arguing that the petition
should be dismissed due to filing deficiencies, on res judicata grounds, and because
Petitioner does not state a cognizable claim for relief in habeas. Respondent is
correct in all of its arguments.
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{¶3} Petitioner failed to file a certified inmate statement account as
mandated by R.C. 2969.25(C). This procedural defect is grounds for dismissal. R.C.
2969.25(C) requires an inmate filing a civil action against a government entity to file
an affidavit of indigency in order to have prepayment of full filing fees waived. This
affidavit must contain a statement of the balance in the inmate's account for each of
the six months prior to filing the civil action, and the statement must be certified by
the institutional cashier. Additionally, the affidavit must contain a statement setting
forth all cash and other things of value owned by the inmate. These requirements
are mandatory for proper filing of habeas petitions where filing fees are not prepaid.
State ex rel. Alford v. Winters, 80 Ohio St.3d 285, 286, 685 N.E.2d 1242 (1997);
Wilson v. Miller, 7th Dist. No. 12 BE 6, 2012-Ohio-1303, ¶13. Failure to attach the
certified account statement results in the dismissal of the petition.
{¶4} In addition, Petitioner previously filed a petition for habeas corpus with
the Fifth District Court of Appeals, and that petition was dismissed. Stewart v. State
of Ohio, 5th Dist. No. 11CAD100088, 2012-Ohio-339. The doctrine of res judicata
applies to habeas filings, and dismissal is warranted if the petitioner has filed
previous petitions in which the alleged error was or could have been raised. Wooton
v. Brunsman, 112 Ohio St.3d 153, 2006-Ohio-6524, 858 N.E.2d 413, ¶6. The
sentencing error alleged by Petitioner could have been raised in his prior habeas
filing. For that reason also, the instant petition must be dismissed.
{¶5} Finally, Petitioner has not alleged that he has the right to be
immediately released from confinement. Petitioner only alleges that the prison
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sentence that was imposed was too long. Habeas relief is only available to
petitioners who are entitled to immediate release from confinement. Pewitt v. Lorain
Correctional Inst., 64 Ohio St.3d 470, 472, 597 N.E.2d 92; R.C. 2725.17 (1992).
Petitioner acknowledges that he was sentenced on September 30, 2011, and that he
was given a four-year prison term. There is nothing in the petition that indicates any
reductions or credits were applied to the four-year prison term. Thus, we will assume
arguendo (based on Petitioner's own filings with this petition) that the prison term will
expire on or about September 30, 2015. Petitioner recognizes that the maximum
lawful prison term was at least three years, which would place Petitioner in lawful
confinement until September 30, 2014. Based on Petitioner's filings, he
acknowledges that he is not entitled to be released until at least September 30, 2014.
Therefore, he has not alleged that he is entitled to immediate release from
confinement. Hence, Petitioner provides a third reason to dismiss his petition.
{¶6} For the aforementioned three reasons, the petition for writ of habeas
corpus is hereby dismissed.
{¶7} Costs taxed against Petitioner. Final order. Clerk to serve notice as
provided by the Civil Rules.
Waite, P.J., concurs.
Donofrio, J., concurs.
DeGenaro, J., concurs.