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Palmer v. May

Court of Appeals of Ohio, Fifth District, Richland

December 2, 2019

DAVID D. PALMER, Petitioner
v.
HAROLD MAY, WARDEN, Respondent

          Writ of Habeas Corpus

         JUDGMENT: Dismissed

          For Petitioner DAVID D. PALMER, Pro Se

          For Respondent DAVE YOST Attorney General By: STEPHANIE L. WATSON Principal Assistant Attorney General Corrections Litigation Section

          JUDGES: Hon. William B. Hoffman, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.

          OPINION

          BALDWIN, J.

         {¶1} 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).

         {¶2} 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.

         {¶3} "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.

         {¶4} 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. Id.

         {¶5} 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.

         {¶6} 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 ...

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