[Cite as State ex rel. Gutierrez v. Warden, Belmont Corr. Inst., 2021-Ohio-957.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Omar Gutierrez, :
Petitioner, :
v. : No. 20AP-384
Warden, Belmont Correctional [Institution], : (REGULAR CALENDAR)
Respondent. :
D E C I S I O N
Rendered on March 25, 2021
On brief: Omar Gutierrez, pro se.
On brief: Dave Yost, Attorney General, and Mary Anne
Reese, for respondent.
IN HABEAS CORPUS
ON RESPONDENT'S MOTION TO DISMISS
LUPER SCHUSTER, J.
{¶ 1} Petitioner, Omar Gutierrez, has filed an original action requesting this court
issue a writ of habeas corpus. This matter was referred to a magistrate of this court pursuant
to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued
the appended decision, including findings of fact and conclusions of law, recommending
this court dismiss the petition for a writ of habeas corpus. No objections to that decision
have been filed.
{¶ 2} Finding no error of law or other defect on the face of the magistrate's decision,
this court adopts the magistrate's decision as our own, including the findings of fact and
No. 20AP-384 2
conclusions of law. In accordance with the magistrate's decision, we grant respondent's
motion to dismiss. Accordingly, we dismiss the petition for a writ of habeas corpus.
Motion to dismiss granted;
petition for habeas corpus dismissed.
BROWN and BROGAN, JJ., concur.
BROGAN, J., retired, formerly of the Second Appellate District,
assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).
No. 20AP-384 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Omar Gutierrez, :
Petitioner, :
v. : No. 20AP-384
Warden, Belmont Correctional [Institution], : (REGULAR CALENDAR)
Respondent. :
MAGISTRATE'S DECISION
Rendered on October 1, 2020
Omar Gutierrez, pro se.
Dave Yost, Attorney General, and Mary Anne Reese, for
respondent.
IN HABEAS CORPUS
ON RESPONDENT'S MOTION TO DISMISS
{¶ 3} Petitioner, Omar Gutierrez, has filed this original action requesting that this
court issue a writ of habeas corpus. The named respondent is David W. Gray, Warden,
Belmont Correctional Institution.
Findings of Fact:
{¶ 4} 1. Petitioner is an inmate currently incarcerated at Belmont Correctional
Institution.
{¶ 5} 2. Belmont Correctional Institution is located in Belmont County, Ohio.
No. 20AP-384 4
{¶ 6} 3. On August 12, 2020, petitioner filed a petition for a writ of habeas corpus
in the Tenth District Court of Appeals, alleging his warrantless arrest was without
probable cause and he was held in jail without lawful process.
{¶ 7} 4. The Tenth District Court of Appeals is located in Franklin County, Ohio.
{¶ 8} 5. On August 26, 2020, respondent filed a motion to dismiss, asserting that
petitioner failed to file his petition in the proper county, pursuant to R.C. 2725.03.
{¶ 9} 6. The matter is currently before the magistrate on respondent's motion to
dismiss.
Conclusions of Law:
{¶ 10} For the reasons that follow, it is this magistrate's decision that this court
should grant respondent's motion and dismiss petitioner's habeas corpus action.
R.C. 2725.03 provides:
If a person restrained of his liberty is an inmate of a state
benevolent or correctional institution, the location of which is
fixed by statute and at the time is in the custody of the officers
of the institution, no court or judge other than the courts or
judges of the county in which the institution is located has
jurisdiction to issue or determine a writ of habeas corpus for
his production or discharge. Any writ issued by a court or
judge of another county to an officer or person in charge at the
state institution to compel the production or discharge of an
inmate thereof is void.
{¶ 11} A writ of habeas corpus is an extraordinary remedy that is available only in
cases "where there is an unlawful restraint of a person's liberty and no adequate remedy
at law." Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 8.
{¶ 12} R.C. 2725.03 requires an inmate to file his or her petition for a writ of habeas
corpus in the court of the county in which the institution is located. Petitioner is
incarcerated in Belmont County; thus, petitioner was required to file his petition for a writ
of habeas corpus in Belmont County. However, petitioner filed his petition in Franklin
County.
{¶ 13} Accordingly, because this court lacks jurisdiction over petitioner's habeas
corpus petition, it is this magistrate's decision that this court should grant respondent's
motion and dismiss the petition.
No. 20AP-384 5
/S/ MAGISTRATE
THOMAS W. SCHOLL III
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).