Opinion
20 MA 0058
04-20-2021
ISAAC HOWARD, Petitioner, v. ACTING WARDEN PHILLIPS, Respondent.
Isaac Howard, Pro se, Northeast Ohio Correctional Center, Atty. Daniel J. Beniot, Associate Assistant Attorney General, Criminal Justice Section, for Respondent.
Writ of Habeas Corpus
Judgment: Dismissed.
Isaac Howard, Pro se, Northeast Ohio Correctional Center,
Atty. Daniel J. Beniot, Associate Assistant Attorney General, Criminal Justice Section, for Respondent.
BEFORE: Cheryl L. Waite, Carol Ann Robb, David A. D'Apolito, Judges.
OPINION AND JUDGMENT ENTRY
PER CURIAM.
{¶1} Petitioner Isaac Howard, acting pro se, has filed a petition for a writ of habeas corpus seeking immediate release from the Northeast Ohio Correctional Center ("NEOCC"), where he is presently incarcerated. He asserts the sentencing court failed to advise him of his right to appeal and to court-appointed appellate counsel. He also maintains the Adult Parole Authority miscalculated his minimum sentence by an additional five years when determining the date of his eligibility for parole. Respondent Michael Phillips is the Warden of the NEOCC. The NEOCC is one of the Ohio Department of Rehabilitation and Correction's ("ODRC") prison institutions. Respondent has filed a motion to dismiss.
{¶2} Petitioner's claims fail because they are not cognizable in habeas corpus due to the availability of other adequate legal alternatives to pursue those claims. Accordingly, we grant Respondent's motion and dismiss this petition with prejudice pursuant to Civ.R. 12(B)(6).
Background
{¶3} The underlying action relevant to Appellant's petition stems from Petitioner's 1999 indictment on three counts of murder. State v. Howard, Cuyahoga C.P. No. CR-99-380045-ZA (Aug. 19, 1999). Count one was for aggravated murder with mass murder and firearm specifications. Counts two and three were for aggravated murder, each with firearm specifications. Petitioner pleaded not guilty, and the case proceeded to a jury trial. While the jury could not return a verdict on count one, it did return guilty verdicts on the lesser included offense of attempted murder on counts two and three. The court sentenced Petitioner to consecutive ten-year prison terms with one- and three-year prison terms on the firearm specifications, for an aggregate sentence of 23 years. The court then appointed Petitioner separate counsel for appeal purposes, and he filed a direct appeal to the Eighth District Court of Appeals. State v. Howard, 8th Dist. Cuyahoga No. 79208 (Feb. 9, 2001).
{¶4} Meanwhile, retrial commenced on the aggravated murder charge that was contained in count one of his indictment. During jury selection, however, Petitioner changed his plea and pleaded guilty to the amended charge of murder. The court sentenced Petitioner to fifteen years to life in prison, followed by a mandatory three-year prison term on the firearm specification. This sentence was ordered to run concurrently with the sentences imposed for counts two and three. Petitioner did not pursue a timely appeal of his conviction and sentence for murder (count one).
{¶5} A few months later, the Eighth District affirmed Petitioner's convictions and sentences relative to counts two and three. State v. Howard, 8th Dist. Cuyahoga No. 79208, 2002-Ohio-501.
{¶6} After that Petitioner pursued, pro se, numerous legal challenges to his murder conviction and sentence. The first of these was filed in 2003, where he filed a combined motion to withdraw his guilty plea, amend the sentence, and for reconsideration. The trial court denied the motion.
{¶7} In 2009, Petitioner filed a motion for resentencing, asserting the court's imposition of his term of postrelease control was improper. As a result, the court ordered Petitioner's return and advised him he was subject to a mandatory five-year term of postrelease control.
{¶8} In 2015, Petitioner sought to file a delayed appeal of his murder conviction and sentence. The Eighth District denied Petitioner's motion for leave to file a delayed appeal. State v. Howard, 8th Dist. Cuyahoga No. 103337 (Aug. 20, 2015). Petitioner appealed the trial court's decision to the Ohio Supreme Court. The Court declined to accept jurisdiction. State v. Howard, 144 Ohio St.3d 1429, 2015-Ohio-5225, 42 N.E.3d 764.
{¶9} In this petition for habeas corpus, Petitioner now raises a collateral attack on his murder conviction and sentence. In support, he presents two arguments. First, Petitioner contends he is entitled to habeas relief because the Eighth District denied his motion for delayed appeal without making certain factual determinations, required under the Ohio Supreme Court's decision in State v. Sims, 27 Ohio St.2d 79, 272 N.E.2d 87 (1971). These determinations relate to whether he knowingly and intelligently waived his right to a direct appeal and his right to court-appointed counsel for direct appeal, before the expiration of the time in which such an appeal could be taken. Second, he argues the Adult Parole Authority miscalculated his mandatory minimum sentence, delaying his eligibility for parole.
{¶10} Respondent has filed a motion to dismiss, arguing that Respondent's claims relating to whether he was advised of his appellate rights are not cognizable in habeas. As for Petitioner's sentencing argument, Respondent points out that Petitioner has not alleged the trial court was without jurisdiction to sentence him and that Petitioner has not yet served the maximum portion of his sentence.
Arguments
{¶11} Respondent requests that the petition be dismissed pursuant to Civ.R. 12(B)(6). A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim may be granted when it appears beyond doubt from the face of the petition, presuming the allegations contained in the petition are true, that the petitioner can prove no facts which would warrant the relief sought. State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80, 537 N.E.2d 641 (1989). To withstand a motion to dismiss, a complaint must contain with sufficient particularity a statement of the clear legal duty of the respondent to perform the requested act. State ex rel. Boggs v. Springfield Local School Dist. Bd. of Ed., 72 Ohio St.3d 94, 95, 647 N.E.2d 788 (1995). The purpose of a Civ.R. 12(B)(6) motion is to test the sufficiency of the complaint. Id. In order to dismiss a case for failure to state a claim, it must appear beyond doubt that, even assuming all factual allegations in the complaint are true, the nonmoving party can prove no set of facts to entitle that party to the relief requested. State ex rel. Pirman v. Money, 69 Ohio St.3d 591, 593, 635 N.E.2d 26 (1994).
{¶12} If the petition does not meet the requirements of a properly filed petition for writ of habeas corpus or fails to state a facially viable claim, it may be dismissed on respondent's motion or sua sponte by the court. Flora v. State, 7th Dist. Belmont No. 04 BE 51, 2005-Ohio-2382, ¶ 5.
{¶13} R.C. 2725.01 provides: "Whoever is unlawfully restrained of his liberty, or entitled to the custody of another, of which custody such person is unlawfully deprived, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment, restraint, or deprivation." The writ of habeas corpus is an extraordinary writ. It will only be issued in certain circumstances of unlawful restraint of a person's liberty where there is no adequate remedy at law, such as direct appeal or postconviction relief. In re Pianowski, 7th Dist. Mahoning No. 03 MA 16, 2003-Ohio-3881, ¶ 3; see also State ex rel. Pirman v. Money, 69 Ohio St.3d 591, 593, 635 N.E.2d 26 (1994). If a person is in custody by virtue of a judgment of a court of record and the court had jurisdiction to render the judgment, the writ of habeas corpus will not be allowed. Tucker v. Collins, 64 Ohio St.3d 77, 78, 591 N.E.2d 1241 (1992). "Absent a patent and unambiguous lack of jurisdiction, a party challenging a court's jurisdiction has an adequate remedy at law by appeal." Smith v. Bradshaw, 109 Ohio St.3d 50, 2006-Ohio-1829, 845 N.E.2d 516, ¶ 10.
{¶14} Hence, habeas is only available when there is no other adequate legal remedy available. State ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 186, 652 N.E.2d 746, 748 (1995). Habeas relief is also not a substitute for direct appeal or other forms of legal postconviction relief. Cornell v. Schotten, 69 Ohio St.3d 466, 633 N.E.2d 1111 (1994).
{¶15} The burden is on the petitioner to establish an immediate right to release. Halleck v. Koloski, 4 Ohio St.2d 76, 77, 212 N.E.2d 601 (1965); Yarbrough v. Maxwell, 174 Ohio St. 287, 288, 189 N.E.2d 136 (1963).
{¶16} In this case, Petitioner alleges he is unlawfully detained because the trial court did not advise him of his right to appeal and his right to a court-appointed appellate attorney. He also alleges the Adult Parole Authority improperly calculated his minimum sentence for purposes of determining parole eligibility. Neither of these arguments calls into question the jurisdiction of the sentencing court.
{¶17} The Ohio Supreme Court's decision Jackson v. Johnson, 135 Ohio St.3d 364, 2013-Ohio-999, 986 N.E.2d 989, highlights the flaw in Petitioner's first argument, that the trial court did not advise him of his right to appeal and his right to a court-appointed appellate attorney. In Jackson, the habeas petitioner claimed he was denied a right to appeal because his initial appeal was dismissed for a procedural failure, and two attempted delayed appeals were denied. The Court rejected his claim, noting the availability of appeal is an adequate remedy at law, even if that remedy is unsuccessful. Id. at ¶ 5.
{¶18} Like the petitioner in Jackson, Petitioner here had an adequate remedy at law in the form of a delayed appeal. Although he pursued that remedy unsuccessfully, it was nevertheless an adequate remedy at law. According to the Ohio Supreme Court, the provision allowing him to request delayed appeal is a remedy in itself: Petitioner "has a potential remedy in that he could petition the court of appeals to proceed with a delayed or reinstated appeal." Id. at ¶ 6.
{¶19} Turning to Petitioner's claim regarding the Adult Parole Authority's miscalculation of his minimum term for parole eligibility purposes, we reiterate that habeas corpus is appropriate only if the petitioner is entitled to immediate release from prison. State ex rel. Holman v. Collins, 159 Ohio St.3d 537, 2020-Ohio-874, 152 N.E.3d 238, ¶ 9. Hence, "earlier consideration of parole is not tantamount to a legal right to release from prison." Heddleston v. Mack, 84 Ohio St.3d 213, 214, 702 N.E.2d 1198 (1998).
Conclusion
{¶20} For all the reasons above, we dismiss the petition for habeas corpus. Petitioner's claims are not cognizable in habeas corpus, as he had other adequate forms of legal relief available that preclude granting extraordinary relief in habeas.
{¶21} Costs taxed against Petitioner. Final order. Clerk to serve copies of this decision and judgment entry pursuant to the civil rules.
JUDGE CHERYL L. WAITE JUDGE CAROL ANN ROBB JUDGE DAVID A. D'APOLITO