Thomas v. Tibbals

[Cite as Thomas v. Tibbals, 2012-Ohio-1904.] IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT GARY THOMAS : JUDGES: : Hon. Patricia A. Delaney, P.J. Petitioner : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : CASE NO. 11CA119 TERRY TIBBALS, WARDEN : : : OPINION Respondent : CHARACTER OF PROCEEDING: Writ of Habeas Corpus JUDGMENT: Dismissed DATE OF JUDGMENT ENTRY: April 20, 2012 APPEARANCES: For Petitioner: For Respondent: Gary Thomas-A-601-988 No Appearance Mansfield Correctional Camp 1150 N. Main Street Mansfield, Ohio 44901 Richland County, Case No. 11CA119 1 Delaney, P.J. {¶1} Petitioner, Gary Thomas, has filed an “Original Action in Habeas Corpus” as well as a Motion for Default Judgment. Petitioner alleges a writ of habeas corpus should be granted to release Petitioner from prison because Petitioner has not received proper jail time credit. {¶2} According to the petition, Petitioner was sentenced to a term of incarceration in Cuyahoga County Common Pleas Case Number CR 08-507478. The conviction in that case was overturned by the Eighth District Court of Appeals. Petitioner was subsequently indicted in Cuyahoga County Common Pleas Case Number CR 10-545714. It is Petitioner’s position he should be released because he should have been given jail time credit in Case Number 10- 545714 for the time served in Case Number 08-507478. {¶3} The Supreme Court has held habeas corpus does not lie to challenge jail time credit, “[Petitioner] had an adequate remedy by appeal to raise any error by the trial court in calculating his jail-time credit. State ex rel. Rudolph v. Horton, 119 Ohio St.3d 350, 2008-Ohio-4476, 894 N.E.2d 49, ¶ 3.” Hughley v. Saunders, 123 Ohio St.3d 446, 2009-Ohio-5585, 917 N.E.2d 270, ¶ I. Richland County, Case No. 11CA119 2 {¶4} Because habeas corpus does not lie to challenge the trial court’s failure to grant jail time credit, the petition is dismissed for failure to state a claim upon which relief may be granted. By: Delaney, P.J. Farmer, J. and Wise, J. concur ____________________________ HON. PATRICIA A. DELANEY ____________________________ HON. SHEILA G. FARMER ____________________________ HON. JOHN W. WISE IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT GARY THOMAS : CASE NO. 11CA119 : Petitioner : : -vs- : JUDGMENT ENTRY : TERRY TIBBALS, WARDEN : : : Respondent : For the reasons stated in our accompanying Memorandum-Opinion, this cause is dismissed. Costs taxed to Petitioner. ______________________________ HON. PATRICIA A. DELANEY ______________________________ HON. SHEILA G. FARMER ______________________________ HON. JOHN W. WISE