Court of Appeals of Ohio, Eleventh District, Trumbull
STATE OF OHIO ex rel. ANTHONY J. HUDSON, Petitioner,
BRIGHAM SLOAN, WARDEN, Respondent.
Action for Writs of Mandamus and Habeas Corpus.
Anthony J. Hudson, pro se, (Petitioner).
DeWine, Ohio Attorney General, State Office Tower, and Jerri
L Fosnaught, (For Respondent).
R. WRIGHT, P.J.
Relator, Anthony J. Hudson, alternatively seeks a writ of
mandamus or writ of habeas corpus compelling respondent,
Warden Brigham Sloan, to release him from prison. We grant
Sloan's motion for summary judgment as Hudson is not
entitled to the requested relief.
Mandamus is a writ issued to a public officer to perform an
act "which the law specially enjoins as a duty resulting
from an office." R.C. 2731.01. "For a writ of
mandamus to issue, the relator must establish a clear legal
right to the relief prayed for; the respondent must have a
clear legal duty to perform the act; and the relator must
have no plain and adequate remedy in the ordinary course of
the law." State ex rel. Widmer v. Mohney, 11th
Dist. Geauga No. 2007-G-2776, 2008-Ohio-1028, ¶31,
citing State ex rel. Natl. Broadcasting Co., Inc. v.
Cleveland, 38 Ohio St.3d 79, 80, 526 N.E.2d 786 (1988).
In a writ of habeas corpus, the petitioner has the burden of
proving his right to release from prison. Chari v.
Vore, 91 Ohio St.3d 323, 325, 2001-Ohio-49, 744 N.E.2d
763. "[T]he petitioner must first introduce evidence to
overcome the presumption of regularity that attaches to all
court proceedings." (Citation omitted.) Id
Sloan moves for summary judgment and asks us to dismiss
Hudson's petitions for habeas corpus and mandamus. Hudson
likewise moves for summary judgment seeking an order
directing Sloan to release him from prison.
Summary judgment is appropriate pursuant to Civ.R. 56 when
the movant shows: (1) there is no genuine issue of material
fact; (2) the moving party is entitled to judgment as a
matter of law; and (3) reasonable minds can come to but one
conclusion, and that conclusion is adverse to the party
against whom the motion for summary judgment is made, said
party being entitled to have the evidence construed most
strongly in his favor. Turner v. Turner, 67 Ohio
St.3d 337, 339-340, 617 N.E.2d 1123 (1993); Bostic v.
Connor, 37 Ohio St.3d 144, 146, 524 N.E.2d 881 (1988).
The moving party bears the burden of proving no genuine issue
of material fact exists. Mitseff v. Wheeler, 38 Ohio
St.3d 112, 115, 526 N.E.2d 798 (1988).
Both Hudson's petition for a writ of mandamus and his
petition for habeas corpus seek his release from prison based
on our prior decision reversing and vacating his penalty
enhancement and ordering the trial court to resentence him to
the lowest level of the offense. State v. Hudson,
11th Dist. Trumbull No. 2014-T-0097, 2017-Ohio-615, ¶40.
However, in so ruling, we relied on the Supreme Court's
decision in State v. Gonzales, 150 Ohio St.3d 261,
2016-Ohio-8319, 81 N.E.3d 405, ¶22 reconsideration
granted, decision vacated, 150 Ohio St.3d 276,
2017-Ohio-777, 81 N.E.3d 419, "Gonzales
I." Thereafter, the Supreme Court reconsidered its
decision in Gonzales I and did an about-face on the
determinative issue. State v. Gonzales, 150 Ohio
St.3d 276, 2017-Ohio-777, 81 N.E.3d 419, ¶3,
reconsideration denied, 149 Ohio St.3d 1409,
2017-Ohio-2822, 74 N.E.3d 466, "Gonzales
Thus, we reconsidered our decision and affirmed the trial
court's decision in full based on Gonzales II.
Summary judgment in Sloan's favor is therefore warranted
because Hudson is not entitled to release as a matter of law.
Hudson's motion for summary judgment is overruled.
TIMOTHY P. CANNON, J., concurs.
V. GRENDELL, J., concurs in judgment only with a Concurring
I concur with the majority's decision to deny
Hudson's petition for a writ of mandamus or a writ of
habeas corpus compelling his release from prison since he is
properly incarcerated due to this court's affirmance of
his sentence upon reconsideration. It is necessary, however,
to emphasize that, contrary to the majority's contention,
the well-reasoned opinion of the Supreme Court in
Gonzales II,150 Ohio St.3d 276, 2017-Ohio-777, 81
N.E.3d 419, is not an "about-face." Further, it is
a proper application of this state's ...