Court of Appeals of Ohio, Fifth District, Richland
DAVID D. PALMER, Petitioner
HAROLD MAY, WARDEN, Respondent
of Habeas Corpus
Petitioner DAVID D. PALMER, Pro Se
Respondent DAVE YOST Attorney General By: STEPHANIE L. WATSON
Principal Assistant Attorney General Corrections Litigation
JUDGES: Hon. William B. Hoffman, P.J., Hon. Patricia A.
Delaney, J., Hon. Craig R. Baldwin, J.
On October 30, 2019, David Palmer filed a petition for writ
of habeas corpus requesting an immediate discharge from
prison, expungement of all his convictions, and a prompt
evidentiary hearing on all of the claims he raises in his
habeas corpus petition. The Ohio Attorney General, on behalf
of Respondent, Harold May, Warden, moved to dismiss Mr.
Palmer's petition under Civ.R. 12(B)(6).
The purpose of a Civ.R. 12(B)(6) motion is to test the
sufficiency of the complaint. State ex rel. Boggs v.
Springfield Loc. School Dist. Bd. of Edn., 72 Ohio St.3d
94, 95, 647 N.E.2d 788 (1995). In order for a case to be
dismissed for failure to state a claim, it must appear beyond
doubt that, even assuming all factual allegations in the
complaint are true, the nonmoving party can prove no set of
facts that would entitle that party to the relief requested.
Keith v. Bobby, 117 Ohio St.3d 470, 2008-Ohio-1443,
884 N.E.2d 1067, ¶10. If a petition does not satisfy the
requirements for a properly filed petition for writ of habeas
corpus or does not present a facially viable claim, it may be
dismissed on motion by the respondent or sua sponte by the
court. Flora v. State, 7th Dist. Belmont No. 04 BE
51, 2005-Ohio-2383, ¶5.
"To be entitled to a writ of habeas corpus, a petitioner
must show that he is being unlawfully restrained of his
liberty and that he is entitled to immediate release from
prison or confinement." State ex rel. Whitt v.
Harris, __Ohio St.3d__, 2019-Ohio-4113, ¶6, citing
R.C. 2725.01; State ex rel. Cannon v. Mohr, 155 Ohio
St.3d 213, 2018-Ohio-4184, 120 N.E.3d 776, ¶10. Habeas
corpus is not available when an adequate remedy at law
exists. Billiter v. Banks, 135 Ohio St.3d 426,
2013-Ohio-1719, 988 N.E.2d 556, ¶8.
For the following reasons, we grant the attorney
general's Motion to Dismiss. First, Mr. Palmer previously
filed multiple habeas corpus petitions and "[r]es
judicata precludes a petitioner from using habeas corpus to
gain successive appellate review of previously litigated
issues." Lopez v. Warden, Madison Corr. Inst,
154 Ohio St.3d 192, 2018-Ohio-4061, 112 N.E.3d 905, ¶6,
quoting State ex rel. Gibson v. Sloan, 147 Ohio
St.3d 240, 2016-Ohio-3422, 63 N.E.3d 1172, ¶9. In
Palmer v. Wilson, 5th Dist. Richland No. 2005-CA-2,
2005-Ohio-2346, we reviewed the various habeas corpus
petitions previously filed by Mr. Palmer. Mr. Palmer filed
one petition in the Pickaway County Common Pleas Court and
argued that he was entitled to immediate release from
confinement because the Montgomery County Court of Common
Pleas violated his speedy trial rights. Id. at
¶7. The Pickaway County Common Pleas Court dismissed Mr.
Palmer's petition. Id. Mr. Palmer appealed and
the court of appeals affirmed the trial court's decision.
Thereafter, in 2002, Mr. Palmer filed another writ of habeas
corpus in the Richland County Court of Common Pleas again
raising the speedy trial issue. Id. at ¶8. The
court dismissed Mr. Palmer's petition and we affirmed the
trial court's dismissal. Id., see Palmer v.
Rose, 5th Dist. Richland No. 02-CA-51, 2003-Ohio-1195.
In 2005, Mr. Palmer filed a third petition for writ of habeas
corpus on the basis that he was never arraigned on his
criminal charges in the Montgomery County Common Pleas Court.
Palmer v. Wilson, 2005-Ohio-2346, at ¶9. We
affirmed the trial court's dismissal of the petition.
Id. at ¶15.
As the Ohio Supreme Court explained in Lopez v. Warden,
Madison Corr. Inst, 2018-Ohio-4061, at ¶6,
"[u]nder these circumstances, we may take judicial
notice of our own docket." In making this statement, the
Court referenced its decision in State ex rel. Neff v.
Corrigan, 75 Ohio St.3d 12, 15-16, 75 Ohio St.3d 12
(1996), that held:
Kramer v. Time Warner, Inc. (C.A.2, 1991), 937 F.2d
767, 773, allow[s] courts to take judicial notice of
appropriate matters in considering a motion to dismiss for
failure to state a claim under the similarly worded
Fed.R.Civ.P. 12(b)(6) without having to convert it to a
motion for summary judgment; see, also, First Michigan
Bank & Trust Co. v. P. & S. Bldg. (Feb. 16,
1989), Meigs App. No. 413, unreported, at 6, 1989 WL 11915
("Conceivably a court may take judicial notice ...