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Johnson v. LaRose

Court of Appeals of Ohio, Seventh District, Mahoning

December 20, 2019

RONALD G. JOHNSON, Petitioner,

         Writ of Habeas Corpus

          Ronald G. Johnson (PRO SE) for Petitioner

          Christopher LaRose, Warden, and Atty. Dave Yost, Ohio Attorney General, Atty. Stephanie L. Watson, Principal Assistant Attorney General, for Respondent.

          BEFORE: Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


          PER CURIAM.

         {¶1} Ronald G. Johnson, proceeding on his own behalf, has filed a complaint for a writ of habeas corpus claiming he has served "duplicate terms" entitling him to immediate release from prison. He is incarcerated at the Northeast Ohio Correctional Center (NEOCC), operated by Core Civic, located at 2240 Hubbard Road in Youngstown, Mahoning County, Ohio. Petitioner's complaint names NEOCC's warden, Christopher LaRose, as Respondent[1] Respondent has filed a motion to dismiss Petitioner's complaint for a writ of habeas corpus and a motion asking this Court to declare Petitioner a vexatious litigator.

         {¶2} While on parole for a conviction in Montgomery County (voluntary manslaughter with a firearm specification), Johnson was arrested and later convicted of a litany of offenses spanning across numerous counties - Fayette (receiving stolen property, failure to comply, and obstructing official business), Adams (burglary), Madison (illegal conveyance of drugs) and Highland (aggravated robbery, burglary, and theft).

         {¶3} Petitioner seeks an order granting his immediate release, arguing that the Bureau of Sentence Computation (BOSC) improperly calculated his sentence and "imposed duplicate terms." He further contends that in so miscalculating, BOSC violated his right to be free from double jeopardy and his right to equal protection and due process. Petitioner reasons that had the improper calculation not occurred, he would have been entitled to be released from prison no later than June 14, 2018. To his handwritten petition, petitioner attached the following: a handwritten memorandum of support; a handwritten list of prior civil actions; a printed copy of an email from ODRC dated December 15, 2015; a printout of what appears to be an online statement, possibly from ODRC but not conclusively so, containing his personal information as well as his offenses and term of incarceration; and several handwritten pages of how petitioner understands his sentencing.

         {¶4} In his January 15, 2019 combined motion to dismiss and motion to declare Petitioner a vexatious litigator, Respondent argues the writ should be denied and Petitioner's case dismissed because 1) Petitioner's petition fails to comport with R.C. 2969.24(A)(2) and (B); 2) Petitioner failed to attach commitment papers required by R.C. 2725.04; 3) Petitioner is attempting to re-litigate issues already decided with this action; 4) Petitioner failed to comply with R.C. 2969.25; and finally, 5) Petitioner's maximum sentence has not expired. Further, in the aforementioned combined motion, Respondent requests that Petitioner be declared a vexatious litigator pursuant to R.C. 2323.52.

         {¶5} Habeas corpus is only available in extraordinary circumstances where there is no adequate alternative legal remedy. Kemp v. Ishee, 7th Dist. Mahoning No. 03-MA-182, 2004-Ohio-390, ¶ 4, citing State ex rel. Jackson v. McFaul, 72 Ohio St.3d 185, 186, 652 N.E.2d 746 (1995). Habeas corpus is not available when the issue could have been raised on direct appeal. Ishee, 7th Dist. Mahoning No. 03-MA-182 at ¶ 4, citing Luna v. Russell, 70 Ohio St.3d 561, 639 N.E.2d 1168 (1994). Further, "where a Petitioner possessed the adequate legal remedies of appeal and post-conviction to challenge his sentencing, a petition for habeas corpus may properly be dismissed." Womack v. Warden of Belmont Correctional Inst, 7th Dist. Belmont No. 04 BE 58, 2005-Ohio-1344, ¶ 5, citing State ex rel. Massie v. Rogers, 77 Ohio St.3d 449, 450, 674 N.E.2d 1383 (1997). In turn, a petitioner "may not use habeas corpus to obtain successive appellate reviews of the same issue." Wells v. Hudson, 113 Ohio St.3d 308, 2007-Ohio-1955, 865 N.E.2d 46, ¶ 7, citing State ex rel. Rash v. Jackson, 102 Ohio St.3d 145, 2004-Ohio-2053, 807 N.E.2d 344.

         {¶6} Additionally, in an action seeking to secure release from wrongful incarceration, "the burden of proof is on the petitioner to establish his right to release," and "unsupported and uncorroborated statements of the petitioner, standing alone, are not sufficient to overcome the presumption of regularity of the court's judgment." Yarbrough v. Maxwell, 174 Ohio St. 287, 288, 189 N.E.2d 136 (1963). The petitioner must show that his detention is unlawful, and is therefore entitled to immediate release. Halleck v. Koloski, 4 Ohio St. 2d 76, 212 N.E.2d 601 (1965). Further, as an inmate, a petitioner is required to comport with the procedural rules in R.C. 2969.25 and R.C. 2725.04 regarding habeas filings. And failure to satisfy these statutory requirements is generally fatal to the petition.

         {¶7} One of the requirements is that the petitioner must file all the commitment papers pertinent to the arguments being raised in the petition. R.C. 2725.04(D). The commitment papers are necessary for a complete understanding of the petition. Bloss v. Rogers, 65 Ohio St.3d 145, 146, 602 N.E.2d 602 (1992). Petitioner has not filed any commitment papers regarding his sentences or terms of imprisonment. Failure to attach copies of the commitment papers as part of the original filing of the petition for habeas corpus requires dismissal of the petition. Id.

         {¶8} Similarly, the petition has not been verified as required by R.C. 2725.04 ("Application for the writ of habeas corpus shall be by petition, signed and verified * * *."). In this context, "verification" means a "formal declaration made in the presence of an authorized officer, such as a notary public, by which one swears to the truth of the statements in the document." Chari v. Vore, 91 Ohio St.3d 323, 327, 744 N.E.2d 763 (2001). Failure to verify the petition warrants immediate dismissal. Id. Petitioner has included an "Affidavit of Support" akin to an affidavit of verity, but it is not notarized, and as such is devoid of any legal import and fails to satisfy R.C. 2725.04's verification requirement.

         {¶9} In addition, Petitioner has failed to provide a compliant description of prior civil actions. According to R.C. 2969.25, Petitioner was required to file with his petition a list of all ...

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