[Cite as McKinney v. Tibbals, 2014-Ohio-592.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JERMAINE MCKINNEY : JUDGES:
: Hon. William B. Hoffman, P.J.
Petitioner : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J
-vs- :
:
TERRY TIBBALS, WARDEN : Case No. 13 CA 65
:
Respondent : OPINION
CHARACTER OF PROCEEDING: Habeas Corpus
JUDGMENT: Dismissed
DATE OF JUDGMENT: February 13, 2014
APPEARANCES:
For Petitioner For Respondent
JERMAINE MCKINNEY, Pro Se JERRI L. FOSNAUGHT
#A520-677 Assistant Attorney General
1150 N. Main Street 150 East Gay Street, 16th Floor
Mansfield, OH 44901 Columbus, OH 43215
Richland County, Case No. 13 CA 65 2
Farmer, J.
{¶1} Petitioner, Jermaine McKinney, has filed a Petition for Writ of Habeas
Corpus arguing he is entitled to immediate release from prison because he and his
attorney were denied access to the jury verdict forms filed in his case. Respondent has
filed a motion to dismiss based on the procedural defect which exists due to Petitioner’s
failure to attach a copy of all of his commitment papers. Further, Respondent argues
the petition should be dismissed because Petitioner has failed to state a claim upon
which relief may be granted. In response to the motion to dismiss, Petitioner suggests
he has attached copies of all commitment papers for those convictions he has not yet
served. In other words, Petitioner maintains he has already served one of his
sentences which was imposed by the Mahoning County Court of Common Pleas,
therefore, he was not required to attach those commitment papers.
{¶2} Even assuming Petitioner is correct in his contention that he has attached
all necessary commitment papers, we find the petition fails to state a claim upon which
relief may be granted.
{¶3} “Dismissal under Civ.R. 12(B)(6) for failure to state a claim upon which
relief can be granted is appropriate if, after all factual allegations are presumed true and
all reasonable inferences are made in Keith's favor, it appears beyond doubt that he
could prove no set of facts entitling him to the requested extraordinary relief in habeas
corpus. State ex rel. Turner v. Houk, 112 Ohio St.3d 561, 2007-Ohio-814, 862 N.E.2d
104, ¶ 5.” Keith v. Bobby, 2008-Ohio-1443, 117 Ohio St. 3d 470, 472, 884 N.E.2d 1067,
1069 (2008).
Richland County, Case No. 13 CA 65 3
{¶4} In general, habeas corpus is proper in the criminal context only if the
petitioner is entitled to immediate release from prison or some other physical
confinement. Crase v. Bradshaw, 108 Ohio St.3d 212, 2006-Ohio-663, 842 N.E.2d 513,
¶ 5; State ex rel. Smirnoff v. Greene (1998), 84 Ohio St.3d 165, 167, 702 N.E.2d 423.
{¶5} Petitioner’s sole contention is that he was deprived of the right to appeal
issues related to the jury verdict forms because both the trial court and the court of
appeals denied his counsel the opportunity to review those forms. In short, he argues
the denial of appellate review of the jury verdict forms entitles him to the issuance of a
writ of habeas corpus. Petitioner contends the jury verdict forms are void because they
do not contain every element of the offenses for which he was convicted.
{¶6} The Supreme Court has held, “[H]abeas corpus is not available to raise
claims of improper jury instructions or verdict forms. See, e.g., State ex rel. Richard v.
Seidner (1996), 76 Ohio St.3d 149, 152, 666 N.E.2d 1134, 1136-1137.” Smith v.
Seidner, 1997-Ohio-224, 78 Ohio St. 3d 172, 173, 677 N.E.2d 336 (1997).
{¶7} Further, Petitioner has or had an adequate remedy at law by way of filing
an application to reopen his appeal pursuant to App.R. 26. The existence of an
adequate remedy at law precludes the issuance of a writ of habeas corpus. “Like other
extraordinary-writ actions, habeas corpus is not available when there is an adequate
remedy in the ordinary course of law.” In re Complaint for Writ of Habeas Corpus for
Goeller, 103 Ohio St.3d 427, 2004-Ohio-5579, 816 N.E.2d 594, ¶ 6.
Richland County, Case No. 13 CA 65 4
{¶8} For these reasons, the motion to dismiss is granted. The request for writ
of habeas corpus is denied.
By Farmer, J.
Hoffman, P.J. and
Wise, J. concur.
SGF/as 131