Billman v. Smith

[Cite as Billman v. Smith, 2020-Ohio-1358.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY

DAVID BILLMAN, :
:
Petitioner-Appellant, : Case No. 19CA18
:
vs. :
: DECISION AND
SHELBIE SMITH, WARDEN, : JUDGMENT ENTRY
:
Respondent-Appellee. :
_____________________________________________________________
APPEARANCES:

David Billman, Orient, Ohio, Appellant, pro se.

David Yost, Ohio Attorney General, and William H. Lamb, Assistant Attorney
General, Cincinnati, Ohio, for Appellee.
_____________________________________________________________

Smith, P.J.

{¶1} This is an appeal from two Pickaway County Common Pleas Court

decisions and entries. The first decision and entry denied Appellant’s petition for a

writ of habeas corpus for failure to state a claim. The second decision and entry

denied Appellant’s motion for reconsideration. Because, in a criminal context,

there is no authority for the filing of a motion for reconsideration of a final

judgment, such a motion is generally considered a legal nullity and thus, an order

denying such motion does not constitute a final, appealable order and this Court
Pickaway App. No. 19CA18 2

lacks jurisdiction to review the related arguments on the merits.1 State v.

Campbell, 4th Dist. Adams No. 16CA1029, 2017-Ohio-4252, ¶ 8, 11 and 12.

Accordingly, to the extent Appellant is appealing the trial court’s denial of his

motion for reconsideration, his appeal is dismissed.

{¶2} Appellant raises four very lengthy assignments of error, however,

related to the trial court’s denial of his petition for a writ of habeas corpus. On

appeal, Appellant essentially contends 1) that the trial court erred in determining he

was not denied access to the courts, which he claims caused his motion for a

delayed appeal to the Supreme Court of Ohio to be denied; 2) that the trial court

erroneously determined his arguments regarding double jeopardy and the failure to

prove venue were barred by res judicata; 3) that the trial court erroneously

determined he did not meet the standard for habeas corpus relief; and 4) that the

trial court erroneously accepted “the state’s misdirection that the double jeopardy

issue is only about the indictment.”

{¶3} However, because we conclude Appellant’s current appeal fails on

procedural grounds as a result of his failure to comply with the filing requirements

of R.C. 2969.25(A), we must dismiss the appeal for lack of jurisdiction.

Furthermore, because we find Appellant’s petition fails on substantive grounds, we

1
Moreover, despite the fact that Appellant has represented he is appealing the trial court’s denial of his motion for
reconsideration, none of his assigned errors on appeal relate to the denial of that motion.
Pickaway App. No. 19CA18 3

cannot conclude that the trial court erred in granting Appellee’s Civ.R. 12(B)(6)

motion for dismissal for failure to state a claim. As such, the arguments raised by

Appellant on appeal are without merit. Accordingly, the appeal is dismissed.

FACTS AND PROCEDURAL HISTORY

{¶4} Because Appellant has not provided this Court with the entire criminal

record of this case, including the underlying criminal record from his convictions

in the Monroe County Court of Common Pleas, we take judicial notice of the facts

of this matter as set forth in his first, direct appeal, as follows:

Appellant and his wife, Mary Billman, are foster parents

working with Monroe County Child and Family Services. According

to testimony, the two live in Monroe County at 31143 Liberty Ridge

Rd., Wingett Run, Ohio 45789 and have lived there since 1994. A

total of seven children lived in the house under the care of the couple

at all periods relevant to this matter. In 2006 Appellant and his wife

accepted responsibility for Child X and Child Y, who had been

removed from the home of their biological father due to sexual abuse.

According to Appellant's wife, when the two children entered

Appellant's home, both had physical indications of sexual abuse.

Both children lived in Appellant's home from February of 2005 until

the present. Appellant resided in the family home until 2011, when
Pickaway App. No. 19CA18 4

his wife asked him to leave. Appellant moved out on October 28,

2011, after his wife confronted him with the accusations of Child X

and Child Y, who told her that Appellant had been sexually abusing

Child Y the entire time she lived with him, and that he had just started

abusing Child X.

On October 28, 2011, after he left the house, Appellant called a

friend, David A. Preston, and announced: “I molested [Child Y].”

(Pretrial Motion Hrg. Tr., p. 46; Tr. Vol. III, p. 93.) Preston was

initially uncertain who was speaking because Appellant had not

identified himself. When Appellant identified himself, Preston asked

if he had a place to stay and offered to allow Appellant to stay the

night in his house. Appellant and Preston had been friends for more

than six years; they initially met through work near Cincinnati.

Although they met because of their work, the two bonded through

their Christian faith and regularly discussed religious issues. The two

men were both assistant pastors, but attended different non-

denominational churches. Neither man attended seminary or had

undertaken any formal program of religious or pastoral study. Each

man had been “ordained” by the pastor of his respective church.

Neither church is formally affiliated with any organized Christian
Pickaway App. No. 19CA18 5

denomination. Appellant stayed with Preston for a brief period, but

eventually called the Monroe County Sheriff's Department and turned

himself in.

On November 17, 2011, Appellant was indicted on twelve

counts alleging abuse of both Child X and Child Y. The counts

included two instances of gross sexual imposition with regard to Child

X, who was then eight years old. The remaining ten counts involved

Child Y, who was then nine years old, and included two instances of

rape, two instances of attempted rape, and six instances of gross

sexual imposition. The charges as they related to Child X were

alleged to have occurred between January 1, 2011 and October 28,

2011. The charges as they related to Child Y were alleged to have

occurred between January 1, 2006 and October 28, 2011. The trial

court found both children competent to testify at trial and their

testimony, coupled with that of the various adults to whom Appellant

admitted his crimes, composed the bulk of the case against Appellant.

Although Appellant was originally charged with two counts of

gross sexual imposition involving Child X, her testimony at trial was

confused, and ultimately, she described a single incident. Child Y,

however, described Appellant touching and rubbing her vagina on ten
Pickaway App. No. 19CA18 6

separate occasions in three different locations in the home: the living

room, her mother's bedroom, and another sister's room. Child Y also

described having been made to touch Appellant's genitals on six

occasions and revealed multiple instances when Appellant licked her

genitals. Child Y recounted three instances when Appellant placed

his penis, which she described as a “[s]oft-ish/hard-ish thing,” in her

mouth. (Tr. Vol.III, p. 71.) During two of these incidents, according

to Child Y, a “clear-ish” liquid went into her mouth, which she then

spit into the toilet. (Tr. Vol.III, p. 74.) According to Child Y, during

one of the three occasions there was no liquid. In the entirety of Child

Y's testimony she related nineteen separate encounters with Appellant

that could support gross sexual imposition charges. At least three and

possibly thirteen of those nineteen incidents involved conduct

constituting rape (oral and digital). Child Y said Appellant told her

not to tell anyone about the things he did “cause I could go to prison

for it.” (Tr. Vol. III, p. 74.)

Ten of the original twelve counts were submitted to the jury:

two counts of gross sexual imposition involving Child X; two counts

of rape involving Child Y; and six counts of gross sexual imposition

involving Child Y. The jury returned guilty verdicts on nine of the ten
Pickaway App. No. 19CA18 7

counts. Appellant was acquitted of the second count of gross sexual

imposition involving Child X.

After sentencing, Appellant filed a motion for new trial based

on an audio recording made by his wife of the two girls. Appellant

argued that in the recording the girls suggested that they would recant

their testimony. The state responded with affidavits describing

conversations between Appellant and his wife that were recorded by

the facility in which Appellant was being held. The recorded

conversations between Appellant and his wife reflected that the two

had planned the best way to record the girls to undermine their

testimony. Appellant's wife told the girls that they would not have to

testify in court at the sentencing hearing if they made a tape for her.

The trial court concluded, without a hearing, that the recording offered

by Appellant was self-serving and not credible. The trial court

overruled Appellant's motion for new trial. Appellant filed timely

appeals of his conviction and sentence and of the ruling denying his

motion for new trial and the two appeals were consolidated.

State v. Billman, 7th Dist. Monroe Nos. 12MO3 and 12MO5, 2013-Ohio-5774, ¶ 2-

7.
Pickaway App. No. 19CA18 8

{¶5} Appellant’s first, direct appeal to the Seventh District Court of Appeals

resulted in a complete affirmance of Appellant’s convictions by a decision issued

on December 16, 2013. In affirming Appellant’s convictions for gross sexual

imposition and rape, the court denied Appellant’s arguments that the State failed to

sufficiently prove venue, i.e. that the crimes occurred in Monroe County. Id. at

¶ 11, 18. The court also considered and rejected Appellant’s argument, under a

plain error analysis, that his indictment was “duplicative” in that it “failed to allege

with enough specificity what events made up the gross sexual imposition charges,

and a bill of particulars and testimony at trial did not correct for [sic] this

deficiency, in violation of his right to due process of law.” Id. at ¶ 18. Further, in

rejecting this argument the court found no merit to Appellant’s claim that the

indictment was insufficient because it charged multiple instances of the same

crime, and therefore failed to “satisfy the notice and double jeopardy protection

purposes of grand jury indictments.” Id. at ¶ 33.

{¶6} Thereafter, it appears that Appellant filed a motion for a delayed appeal

to the Supreme Court of Ohio, which was denied on April 23, 2014. State v.

Billman, 138 Ohio St.3d 1467, 2014-Ohio-1674, 6 N.E.3d 1203. From there,

Appellant filed a federal petition for habeas corpus on October 15, 2014, asserting

four grounds for relief. Billman v. Warden, S.D.Ohio No. 2:14-CV-1910, 2016

WL 931262 (Mar. 11, 2016). The first ground for relief consisted of a claim that
Pickaway App. No. 19CA18 9

the “State did not prove venue, nor present evidence, to support the convictions, at

trial.” Id. at *2. The second ground consisted of a claim that “[t]he convictions

were against the manifest weight of the evidence.” Id. The third ground consisted

of a claim that “[t]he charges are duplicitous (carbon copies) without distinction

and do not protect the petitioner against double jeopardy.” Id. The fourth claim

has no relevance to the present appeal.

{¶7} The federal court ultimately determined that all of Appellant’s claims

“were procedurally defaulted” and the petition was ultimately denied on March 11,

2016. Id. at *5.2 In denying the petition, and pertinent to Appellant’s denial of

access to courts argument in the present appeal, the federal court found that “the

record does not support Petitioner’s claim that he was denied access to notary

services required to complete his indigency affidavit until it was too late for him to

take a timely appeal.” Id. at *5. The court further found that because “no

additional research was needed in order for him to perfect his appeal[,]” he had not

established good cause for his delay in filing his appeal to the Supreme Court of

Ohio. Id. The court further noted, in support of its decision, that “[t]he federal

2
The court explained that “[t]he term ‘procedural default’ has come to describe the situation where a person
convicted of a crime in a state court fails (for whatever reason) to present a particular claim to the highest court of
the State so that the State has a fair chance to correct any errors made in the courts of the trial or the appeal before a
federal court intervenes in the state criminal process.” Id. at *3. The court further explained that “[t]his ‘requires
the petitioner to present “the same claim under the same theory” to the state courts before raising it on federal
habeas review.’ ”
Pickaway App. No. 19CA18 10

courts have not been particularly sympathetic to claims that lack of access to a law

library should excuse a procedural default.” Id.

{¶8} The federal court further went on to discuss the fact that Appellant

would not have been able to meet the standard to show that his claims were

meritorious, even if they had not been procedurally defaulted. Id. The court

explained as follows:

When the claims presented in a habeas corpus petition have been

presented to and decided by the state courts, a federal habeas court

may not grant relief unless the state court’s decision was contrary to

or an unreasonable application of clearly established federal law, or

based on an unreasonable determination of the facts in light of the

evidence that was presented. Id. at *6.

The federal court noted that Appellant’s sufficiency argument involving the

establishment of venue, as well as Appellant’s double jeopardy argument related to

the indictment on multiple counts of rape and gross sexual imposition, had been

considered and addressed by the state court of appeals. Id. at *6, 8. The court

further determined that the fact that all of his claims had been procedurally

defaulted caused Appellant no prejudice, as none of his claims were meritorious.

Id. at *7, 8.
Pickaway App. No. 19CA18 11

{¶9} Subsequently, Appellant filed the underlying petition for a writ of

habeas corpus in the Pickaway County Court of Common Pleas. Appellant set

forth three arguments in support of his petition. First, Appellant raised a double

jeopardy/due process argument related to his indictment and prosecution on

multiple counts of rape and gross sexual imposition charges. He essentially

claimed that the State had prosecuted him multiple times for the same crime

without making any distinction between the charged crimes. He argued that an

“indictment of identical charges is vague and duplicative” and that the repetitive

rape and gross sexual imposition charges contained in his indictment were mere

“carbon copies” of one another. He contended that the State’s failure to

differentiate between the charges violated his Sixth Amendment right to be

informed of the nature of the accusations being made against him and did not

provide him with notice of all of the elements of the offenses being charged. He

contended that, as a result, he was convicted of a generic pattern of offenses rather

than being convicted of specific, separately proven offenses with the threat of more

charges to come. He cited Valentine v. Kontech, 395 F.3d 626, 634 (6th

Cir.2005) in support of his argument, stating that Valentine held that an indictment

that fails to comport with due process, to the extent that it contained identical
Pickaway App. No. 19CA18 12

charges that were undifferentiated at trial, failed to give the defendant adequate

notice of the charges against him.3

{¶10} Second, Appellant argued that he was deprived of his constitutional

right to due process and equal protection under the Fifth and Fourteenth

Amendments, claiming that venue had to be proven for each and every count of the

indictment, and that the State failed to prove venue for any of the counts. He

argued that although one of the children testified that the incidents at issue

occurred in the living room and in her mom’s bedroom, that the State failed to

connect any of the those rooms to a location to prove venue for counts one, three,

four, and seven through twelve of the indictment. He claims his conviction in light

of this failure has resulted in him being wrongfully imprisoned. Ultimately, he

claimed these alleged errors at trial caused him to be convicted based upon

insufficient evidence and resulted in a denial of his constitutional rights to due

process and equal protection. He noted in his petition that he raised this venue

argument on direct appeal, but that it was denied.

{¶11} Third, Appellant argued that he was denied his federal constitutional

right of access to the courts because prison authorities prevented and deprived him

3
The Seventh District Court of Appeals decision found that Appellant’s reliance on Valentine in support of his
arguments regarding his indictment were misplaced, explaining that “the Valentine decision was based on Fifth
Amendment law that does not apply to the Ohio Grand Jury indictment requirement[,]” and importantly, that the
Valentine decision “misapplies existing federal law and misrepresents a number of the cases on which it relies.”
State v. Billman, supra, at ¶ 34-35.
Pickaway App. No. 19CA18 13

of access to the prison law library, someone trained in law to assist him, notary

services, copying services, and failed to respond to his kites requesting assistance.

He argued that only after he filed a grievance was he permitted access to the law

library and provided assistance in filing his appeal to the Ohio Supreme Court. He

further argued that he was denied access to the courts because he missed his filing

deadline and was only able to file a motion for a delayed appeal with the Supreme

Court, which was denied. He argues that the denial of his motion for leave to file a

delayed appeal was a direct result of prison officials denying him access to the

courts. Finally, he contends this denial entitles him to an immediate release from

prison.

{¶12} The State opposed Appellant’s petition below. As to Appellant’s first

argument that his indictment was defective, which he couched in terms of a double

jeopardy violation, the trial court found the issue was “addressed and ruled on” in

his first, direct appeal and was, thus, res judicata. As to his second argument that

venue was never established, the court found this issue was also “addressed and

ruled on” in his first, direct appeal and was res judicata as well. Finally, as to

Appellant’s third argument that he was denied access to the courts, the trial court

found that because Appellant was able to make a delayed appeal to the Supreme

Court of Ohio, he was not denied access to the courts despite the fact that his

motion was denied. The trial court ultimately dismissed Appellant’s petition.
Pickaway App. No. 19CA18 14

Appellant now appeals from the trial court’s dismissal of his petition and assigns

four errors for our review.

ASSIGNMENTS OF ERROR

I. “THE COURT IS IN ERROR WHEN IT STATED IN ITS DECISION
AND ENTRY THAT MR. BILLMAN WAS PERMITTED A DELAYED
APPEAL TO THE OHIO SUPREME COURT (O.S.CT.) SEE BONILLA,
ID. WHEREAS MR. BILLMAN WAS DENIED A DELAYED
APPEAL AND WAS TIME BARRED FROM THE COURT IN
VIOLATION OF MR. BILLMAN’S FUNDAMENTAL
CONSTITUTIONAL RIGHT OF ACCESS TO THE COURT
ANNUNCIATED IN BOUNDS V. SMITH, ID. UNDER THE SIXTH
AMENDMENT TO THE U.S. CONSTITUTION AND HIS RIGHT TO
DUE PROCESS OF THE LAW UNDER THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, U.S.
SUPREME COURT RULINGS IN BOUNDS V. SMITH, HOOKS V.
WAINWRIGHT. ARTICLE 1, SECTION 16 OF THE OHIO
CONSTITUTION.”

II. “THE COURT IS IN ERROR WITH REGARD TO RES JUDICATA. THE
ISSUES OF PROVED VENUE AND DOUBLE JEOPARDY ARE NOT
RES JUDICATA AS MR. BILLMAN WAS NEVER ALLOWED TO
ARGUE AGAINST THE FABRICATED EVIDENCE INTRODUCED BY
THE STATE. SEE BONILLA, ID. MR. BILLMAN WAS NOT
PERMITTED TO RESPOND TO, OR DEFEND HIMSELF AGAINST,
THE FABRICATED EVIDENCE THAT THE STATE PROVED VENUE,
NOR THE DECEPTION THAT THE DOUBLE JEOPARDY ISSUE WAS
ABOUT THE INDICTMENT, PRESENTED BY THE STATE. IN
VIOLATION OF ACCESS TO THE COURT UNDER THE SIXTH
AMENDMENT AND OF DUE PROCESS OF THE LAW UNDER THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S.
CONSTITUTION, ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION.”

III. “THE COURT IS IN ERROR WHEN IT SAID THAT MR. BILLMAN
DOES NOT MEET THE STANDARD FOR HABEAS CORPUS.
WHEREAS MR. BILLMAN’S CONVICTIONS ARE A DIRECT
CONTRADICTION TO THE STATE CONSTITUTION, ARTICLE I, § 10
Pickaway App. No. 19CA18 15

WHICH SAYS THAT A CONVICTION MAY NOT BE HAD WHERE
THE VENUE ALLEGED IN THE INDICTMENT IS NOT PROVEN.
AND BEING DENIED ACCESS TO THE COURT PREVENTED HIM
FROM ADDRESSING THIS ISSUE IN THE NORMAL COURSE OF
LAW. A VIOLATION OF HIS SIXTH AMENDMENT RIGHT OF
ACCESS TO THE COURT U.S. SUPREME COURT RULINGS AND TO
DUE PROCESS OF THE LAW UNDER THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION,
ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
THEREFORE MR. BILLMAN CLEARLY MEETS THE STANDARD OF
EXTRAORDINARY CIRCUMSTANCES AS ANNUNCIATED IN, THE
DECISION AND ENTRY, STATE EX REL. JACKSON V. MCFAUL.”

IV. THE COURT IS IN ERROR WHEN IT ACCEPTS THE STATE’S
MISDIRECTION THAT THE DOUBLE JEOPARDY ISSUE IS ONLY
ABOUT THE INDICTMENT. WHEREAS MR. BILLMAN WAS
CONVICTED MULTIPLE TIMES FOR THE EXACT SAME OFFENSE
AND THE STATE MADE NO DISTINCTION BETWEEN THE
CONVICTIONS DURING TRIAL. IN VIOLATION OF THE FIFTH
AMENDMENT TO THE U.S. CONSTITUTION, AND IN VIOLATION
OF DUE PROCESS OF THE LAW UNDER THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION,
ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION.”

Standard of Review

{¶13} As set forth above, the State moved to dismiss Appellant’s petition

below for failure to state a claim and the trial court granted the State’s motion and

dismissed the petition. “A motion to dismiss for failure to state a claim upon

which relief can be granted tests the sufficiency of the complaint.” Volbers–

Klarich v. Middletown Mgt., Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, 929

N.E.2d 434, ¶ 11. In order for a court to dismiss a complaint under Civ.R.

12(B)(6) for failure to state a claim upon which relief can be granted, it must
Pickaway App. No. 19CA18 16

appear beyond doubt that the plaintiff can prove no set of facts in support of the

claim that would entitle the plaintiff to the relief sought. Ohio Bur. Of Workers'

Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 12;

Rose v. Cochran, 4th Dist. Ross No. 11CA3243, 2012-Ohio-1729, ¶ 10. When a

trial court considers a Civ.R. 12(B)(6) motion to dismiss, it must review only the

complaint, accepting all factual allegations contained in the complaint as true and

making all reasonable inferences in favor of the nonmoving party. State ex rel.

Talwar v. State Med. Bd. of Ohio, 104 Ohio St.3d 290, 2004-Ohio-6410, 819

N.E.2d 654, ¶ 5; Perez v. Cleveland, 66 Ohio St.3d 397, 399, 613 N.E.2d 199

(1993); Estate of Sherman v. Millhon, 104 Ohio App.3d 614, 617, 662 N.E.2d

1098 (10th Dist.1995). Furthermore, the trial court “cannot rely on evidence or

allegations outside the complaint to determine a Civ.R. 12(B)(6) motion.” State ex

rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207, 680 N.E.2d 985 (1997).

{¶14} This same standard applies in cases involving claims for extraordinary

relief, including habeas corpus. Boles v. Knab, 130 Ohio St.3d 339, 2011-Ohio-

5049, 958 N.E.2d 554, ¶ 2 (“Dismissal under Civ.R. 12(B)(6) for failure to state a

claim was warranted because after all factual allegations of Boles's petition were

presumed to be true and all reasonable inferences therefrom were made in his

favor, it appeared beyond doubt that he was not entitled to the requested

extraordinary relief in habeas corpus”). “Appellate courts review de novo a
Pickaway App. No. 19CA18 17

dismissal for the failure to state a claim.” Hammond v. Perry, 4th Dist. Hocking

No. 12CA27, 2013-Ohio-3683, ¶ 11, citing Allen v. Bryan, 4th Dist. Hocking No.

12CA15, 2013-Ohio-1917, ¶ 7; Barley v. Hearth & Care of Greenfield, L.L.C., 4th

Dist. Highland No. 12CA13, 2013-Ohio-279, ¶ 11. “In other words, an appellate

court affords no deference to a trial court's decision and, instead, applies its own,

independent review to determine if the Civ.R. 12(B)(6) requirements were

satisfied.” Hammond at ¶ 11, citing McDill v. Sunbridge Care Ents., Inc., 4th Dist.

Pickaway No. 12CA8, 2013-Ohio-1618. ¶ 10; Estep v. State, 4th Dist. Ross No.

09CA3088, 2009-Ohio-4349, ¶ 5.

Habeas Corpus

{¶15} Habeas corpus petitions are governed by R.C. 2725. They are

available to a person who is “unlawfully restrained of his liberty * * * to inquire

into the cause of such imprisonment, restraint, or deprivation.” R.C. 2725.01. “An

individual may petition for a writ of habeas corpus if his maximum sentence has

expired and he is being held unlawfully.” Nedea v. Cook, 4th Dist. Hocking No.

15CA12, 2015-Ohio-3668, ¶ 8, citing State v. Wilburn, 4th Dist. Lawrence No.

98CA47, 1999 WL 1281507 (Dec. 22, 1999) and Frazier v. Strickrath, 42 Ohio

App.3d 114, 115-116, 536 N.E.2d 1193 (4th Dist.1988); see also Bradley v. Hooks,

4th Dist. Ross No. 16CA3576, 2017 -Ohio- 4105, ¶ 10.
Pickaway App. No. 19CA18 18

{¶16} A habeas corpus petition must conform to certain statutory

requirements. It must be signed and verified, and it must specify: (A) that the

petitioner is imprisoned or restrained of his liberty; (B) the name of the person

restraining the petitioner, if known; (C) the place the petitioner is imprisoned or

restrained, if known; and (D) it must include a copy of the commitment papers, if

the commitment papers can be obtained without impairing the efficiency of the

remedy. R.C. 2725.04. A petitioner's failure to attach all pertinent commitment

papers renders the petition fatally defective. See Tucker v. McAninch, 82 Ohio

St.3d 423, 696 N.E.2d 595 (1998) (affirming this court's dismissal of a habeas

corpus petition where petitioner did not attach all the relevant commitment papers);

Workman v. Shiplevy, 80 Ohio St.3d 174, 685 N.E.2d 231 (1997); Bloss v. Rogers,

65 Ohio St.3d 145, 146, 602 N.E.2d 602 (1992). It appears Appellant met these

procedural requirements below and that the trial court did not dismiss Appellant’s

petition on these procedural grounds.

{¶17} Additionally, a failure to comply with the provisions of R.C. 2969.25

requires the dismissal of an action in habeas corpus. Fuqua v. Williams, 100 Ohio

St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982. R.C. 2969.25(A)(1)-(4) requires that

an inmate who files a civil action or appeal against a government entity or

employee must file an affidavit that contains a description of each civil action or

appeal the inmate has filed in the previous five years. A review of the record
Pickaway App. No. 19CA18 19

indicates Appellant met this requirement below with the initial filing of his petition

at the trial court level. According to the plain language of the statute, he was

required to file another affidavit along with his appeal to this Court, however, he

did not. As a result, his appeal is procedurally defective and must be dismissed.

See Robinson v. Miller, 148 Ohio St.3d 429, 2016-Ohio-7828, 71 N.E.3d 255, ¶ 7

(“The requirements of R.C. 2969.25 are ‘ “mandatory, and failure to comply with

them subjects an inmate’s action to dismissal.” ’ ”), quoting Hazel v. Knab, 130

Ohio St.3d 22, 2011-Ohio-4608, 955 N.E.2d 378, ¶ 1, in turn quoting State ex rel.

White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262, 788 N.E.2d 634, ¶ 5.

{¶18} R.C. 2969.25(C)(1) further requires that inmates who file civil actions

or appeals against a government entity or employee, and who seek waivers of the

prepayment of the full filing fees assessed by the court, shall file with the

complaint, or notice of appeal, an affidavit that the inmate is seeking a waiver of

the prepayment of the court's full filing fees, as well as an affidavit of indigency.

Washington v. Morgan, 4th Dist. Scioto No. 14CA3664, 2014-Ohio-5834, ¶ 9.

These affidavits must include a statement that sets forth the balance in the inmate's

account for each of the preceding six months and must be certified by the

institutional cashier. Id.; citing Boles v. Knab, 129 Ohio St.3d 222, 2011-Ohio-

2859, 951 N.E.2d 389, ¶ 1 (court of appeals did not err in dismissing inmate's

petition for a writ of habeas corpus because inmate must include a statement
Pickaway App. No. 19CA18 20

setting forth the balance in his inmate account for each of the preceding six

months, as certified by the institutional cashier); State ex rel. McGrath v.

McDonnell, 126 Ohio St.3d 511, 2010-Ohio-4726, 935 N.E.2d 830; State ex rel.

Thacker v. Evans, 4th Dist. Gallia No. 05CA4, 2005-Ohio-933. Here, Appellant

filed an affidavit of indigency averring he was without sufficient funds to pay the

required costs and fees of the habeas action and requested a waiver at the trial court

level. His request included the required affidavit as well as the certified statement

regarding his inmate account balance. On appeal, however, although Appellant

filed an affidavit of indigency, he did not further seek a waiver of prepayment of

the filing fees. Nor did he attach a certified statement regarding his inmate account

balance. Thus, we do not construe Appellant’s filing of an affidavit of indigency

alone as a request for a waiver of fees. Therefore, Appellant was not bound by the

additional statutory filing requirements on appeal, the noncompliance with which

would have been additional grounds for dismissal of his appeal.

Legal Analysis

{¶19} Despite the procedural defect on appeal, we note that Appellant’s

petition was properly dismissed on substantive grounds by the trial court, albeit for

incorrect reasons as to the double jeopardy, venue, insufficiency, due process, and

equal protection arguments. First, to the extent Appellant argues he was denied

access to the courts by prison officials by virtue of the fact that he missed his
Pickaway App. No. 19CA18 21

appellate filing deadline to the Supreme Court of Ohio and, as a result, had to file a

motion for leave to file a delayed appeal, which was denied, his argument has no

merit. As noted by the State in its motion to dismiss below and also on appeal,

Appellant’s motion for leave to file a delayed appeal to the Supreme Court was an

adequate remedy at law, despite the fact that the motion was ultimately denied.

Webber v. Kelly, 120 Ohio St.3d 440, 2008-Ohio-6695, 900 N.E.2d 175. As

explained in Webber, a petitioner has an adequate remedy at law by way of an

appeal to the Supreme Court and simply because an attempt to appeal to the

Supreme Court fails when a motion for leave to file a delayed appeal is denied, a

petitioner is not entitled to extraordinary relief in habeas corpus. Id. at ¶ 9. Thus,

Appellant’s access-to-the-courts argument had no merit.

{¶20} Second, with respect to Appellant’s arguments regarding his defective

indictment and duplicative prosecution for multiple offenses (which were couched

in terms of double jeopardy and due process violations) and failure to prove

venue/sufficiency of the evidence (which were couched in terms of due process

and equal protection violations), as noted by the trial court below and also by the

federal court in Appellant’s federal habeas corpus petition, these exact arguments

were raised on direct appeal and were considered and denied. However, contrary

to the trial court’s decision, as well as arguments by the State both below and on

appeal, they are not barred by res judicata, at least to the extent they were already
Pickaway App. No. 19CA18 22

decided under Appellant’s first, direct appeal. The doctrine of res judicata

generally states as follows:

[A] final judgment of conviction bars a convicted defendant who was

represented by counsel from raising and litigating in any proceeding

except an appeal from that judgment, any defense or any claimed lack

of due process that was raised or could have been raised by the

defendant at the trial, which resulted in that judgment of conviction,

or on an appeal from that judgment. State v. Perry, 10 Ohio St.2d

175, 176, 226 N.E.2d 104, paragraph nine of the syllabus (1967).

{¶21} However, this Court has observed that the Supreme Court of

Ohio has previously “recognized that habeas corpus actions are typically

exempt from res judicata because ‘ “[c]onventional notions of finality of

litigation have no place where life or liberty is at stake.” ’ ” Lloyd v.

Robinson, 4th Dist. Ross No. 14CA3462, 2015-Ohio-1331, ¶ 12-13 (also

holding, however, that res judicata applied to bar successive petitions for

habeas corpus), quoting Natl. Amusements, Inc. v. Springdale, 53 Ohio St.3d

60, 63, 558 N.E.2d 1178 (1990), in turn quoting Sanders v. United States,

373 U.S. 1, 8, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); see also Patterson v.

Bracy, 2019-Ohio-747, 132 N.E.3d 1115, ¶ 21 (“Under Ohio law, habeas

corpus proceedings are exempt from res judicata.”). Thus, because the trial
Pickaway App. No. 19CA18 23

court determined that these arguments were barred by res judicata because

they were already raised and rejected as part of Appellant’s first, direct

appeal, the trial court’s decision was in error. However, Appellant’s petition

was arguably barred by res judicata as a successive petition in light of the

fact that Appellant had filed a previous motion for a federal writ of habeas

corpus. Because Appellant’s arguments fail for other reasons, however, we

decline to address whether res judicata applies to bar a state petition for

habeas corpus that is filed after a federal petition for habeas corpus is

denied, when the grounds for denial were based on procedural default and

were not based upon the merits.

{¶22} As explained in Webber, supra, “in general, ‘habeas corpus is not

available to remedy claims concerning * * * the sufficiency of the evidence.’ ”

Webber at ¶ 8, quoting State ex rel. Tarr v. Williams, 112 Ohio St.3d 51, 2006-

Ohio-6368, 857 N.E.2d 1225, ¶ 4; see also Bradley v. Hooks, 4th Dist. Ross No.

16CA3576. 2017-Ohio-4105, ¶ 14. Likewise, challenges to an indictment are

properly brought on direct appeal in the ordinary course of law and cannot be

challenged collaterally by an extraordinary writ. See generally, State v. Lambert,

2017-Ohio-4310, 82 N.E.3d 29, ¶ 15 (4th Dist.), citing State ex rel. Bandarapalli v.

Gallagher, 128 Ohio St.3d 314, 2011-Ohio-230, 943 N.E.2d 1020, ¶ 1; see also

Lloyd v. Robinson, supra, at ¶ 14. Stated another way, challenges to the
Pickaway App. No. 19CA18 24

indictment, arguments challenging the sufficiency of the evidence, and alleged due

process violations that occur as a result, are not cognizable in habeas corpus. Thus,

the trial court reached the correct result as to these arguments in dismissing

Appellant’s petition, albeit for the wrong reasons.

{¶23} Moreover, this Court could not review the merits of Appellant’s

arguments even if we were so inclined because Appellant has not provided us with

the trial court record related to his Monroe County, Ohio convictions. Finally, as

noted by the State and though not mentioned by the trial court, Appellant is not

entitled to extraordinary relief because his maximum sentence has not expired. As

set forth above, an individual may only petition for a writ of habeas corpus if his

maximum sentence has expired and he is being held unlawfully. Nedea v. Cook,

supra, at ¶ 8 and Bradley v. Hooks, supra, at ¶ 10. Appellant, however, is currently

serving two concurrent terms of life in prison without parole, along with seven

consecutive sixty-month prison terms. As a result, he cannot demonstrate that his

maximum sentence has expired.

{¶24} Thus, to summarize, because Appellant’s petition failed on

substantive grounds below, we cannot conclude the trial court erred in dismissing

his petition for failure to state a claim. Furthermore, because Appellant’s appeal to

this Court fails on procedural grounds, it likewise must be dismissed. Accordingly,
Pickaway App. No. 19CA18 25

the present appeal is hereby dismissed.

APPEAL DISMISSED.
Pickaway App. No. 19CA18 26

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE DISMISSED and costs be assessed to
Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Pickaway County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J. & Hess, J.: Concur in Judgment and Opinion.
For the Court,

_________________________
Jason P. Smith
Presiding Judge

NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.