[Cite as Marrero v. Miller, 2013-Ohio-363.]

                             STATE OF OHIO, BELMONT COUNTY

                                   IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

TITO E. MARRERO,                              )
                                              )   CASE NO. 12 BE 37
        PETITIONER,                           )
                                              )
        - VS -                                )        OPINION
                                              )         AND
MICHELE MILLER, WARDEN,                       )     JUDGMENT ENTRY
                                              )
        RESPONDENT.                           )

CHARACTER OF PROCEEDINGS:                         Petition for Writ of Habeas Corpus

JUDGMENT:                                         Petition Dismissed.

APPEARANCES:

For Petitioner:                                   Tito E. Marrero, Pro-se
                                                  Inmate #604839
                                                  Belmont Correctional Institution
                                                  68518 Bannock Rd., SR 331
                                                  St. Clairsville, OH 43950

For Respondent:                                   Mike DeWine
                                                  Ohio Attorney General
                                                  Maura O'Neill Jaite
                                                  Senior Asst. Attorney General
                                                  Ohio Attorney General's Office
                                                  Criminal Justice Section
                                                  150 East Gay Street, 16th Floor
                                                  Columbus, OH 43215


JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                  Dated: January 29, 2013
[Cite as Marrero v. Miller, 2013-Ohio-363.]


PER CURIAM:
        {¶1}     Pro-Se Petitioner, Tito E. Marrero, is a prisoner at the Belmont Correctional
Institution and has filed a petition for writ of habeas corpus. Marrero is currently in the
custody of Respondent Michele Miller, warden of the prison.
        {¶2}     In 2010, under Lorain County Common Pleas Court Case No. 08CR075288,
Marrero was convicted of one count of trafficking in cocaine, one count of possession of
cocaine, and one count of possession of drug paraphernalia, following a no-contest plea.
The trial court sentenced him to a total of three years in prison. On direct appeal, Marrero
alleged that the trial court erred in denying his suppression motions and erred by ordering
him to repay court appointed attorney fees without a finding that he was financially able to
do so. The Ninth District upheld the trial court's denial of the suppression motions, but
reversed the order for the attorney fees and remanded the case for a determination on
that matter. State v. Marrero, 9th Dist. No. 10CA009867, 2011-Ohio-3745. The Ohio
Supreme Court subsequently denied his motion for a delayed appeal. State v. Marrero,
957 N.E.2d 1167, 2011-Ohio-6124.
        {¶3}     Marrero filed this action on November 14, 2012, asserting violations of his
due process and equal protection rights, as well as issues of judicial bias, prosecutorial
misconduct, ineffective assistance of trial and appellate counsel, and suppression and
search warrant claims. Marrero requests that this court remand his case to the trial court
in order to address these violations.
        {¶4}     The warden filed a motion to dismiss on December 10, 2012, requesting
that this court dismiss Marrero's petition because it does not meet the statutory filing
requirements and because the petition does not state a cognizable claim for habeas
corpus relief. Marrero filed a motion for leave to amend his petition on December 18,
2012. In his memorandum in support, he responded to the warden's arguments and he
also attached several documents, which he claimed cured the procedural deficiencies of
his original petition.
        {¶5}     R.C. 2725.01 provides: "Whoever is unlawfully restrained of his liberty, or
entitled to the custody of another, of which custody such person is unlawfully deprived,
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may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment,
restraint, or deprivation." The writ of habeas corpus is an extraordinary writ and will only
be issued in certain circumstances of unlawful restraint of a person's liberty where there is
no adequate legal remedy." In re Pianowski, 7th Dist. No. 03 MA 16, 2003-Ohio-3881,
¶3, citing State ex rel. Pirman v. Money, 69 Ohio St.3d 591, 593 635 N.E.2d 26 (1994).
"Thus, if the defendant has or had an adequate remedy in the ordinary course of the law
such as an appeal, delayed appeal, petition for post-conviction relief, motion for relief
from a civil judgment, or motion to withdraw a guilty plea, then habeas is inappropriate."
(Emphasis sic.) Mosley v. Eberlin, 7th No. 08 BE 7, 2008-Ohio-6593, ¶27.
       {¶6}   A very limited exception to this rule exists in cases where the sentencing
court patently and unambiguously lacked jurisdiction over the petitioner. Ross v. Saros,
99 Ohio St.3d 412, 2003-Ohio-4128, 792 N.E.2d 1126, ¶12-14. "'In the absence of a
patent and unambiguous lack of jurisdiction, a court having general subject-matter
jurisdiction can determine its own jurisdiction, and a party challenging that jurisdiction has
an adequate remedy by appeal.' (Emphasis added.)" Id. at ¶14, quoting State ex rel.
United States Steel Corp. v. Zaleski, 98 Ohio St.3d 395, 2003-Ohio-1630, 786 N.E.2d 39,
¶8, quoting State ex rel. Nalls v. Russo, 96 Ohio St.3d 410, 2002-Ohio-4907, 775 N.E.2d
522, ¶18.
       {¶7}   Thus, if a petitioner is in custody by virtue of a judgment of a court of record
and the court had jurisdiction to render the judgment, the writ of habeas corpus will not be
allowed. Tucker v. Collins, 64 Ohio St.3d 77, 78, 591 N.E.2d 1241 (1992). The burden is
on the petitioner to establish a right to release. Halleck v. Koloski, 4 Ohio St.2d 76, 77,
212 N.E.2d 601 (1965); Yarbrough v. Maxwell, 174 Ohio St. 287, 288, 189 N.E.2d 136
(1963).
       {¶8}   The warden has filed a Civ.R. 12(B)(6) motion to dismiss for failure to state
a claim in this matter. The purpose of such a motion is to test the sufficiency of the
complaint. State el rel. Boggs v. Springfield Local School Dist. Bd. of Ed., 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
                                                                                        -3-


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 the petition does not meet the requirements of a properly filed
petition for writ of habeas corpus, or fails to state a facially viable claim, it may be
dismissed on motion by the respondent or sua sponte by the court. Flora v. State, 7th
Dist. No. 04 BE 51, 2005-Ohio-2383, ¶5.
       {¶9}     Initially, we must address whether Marrero's petition meets the statutory
filing requirements. R.C. 2725.04(D) requires the petitioner to file all the pertinent
commitment papers relating to the petition. The Ohio Supreme Court has held that:

       These commitment papers are necessary for a complete understanding of
       the petition. Without them, the petition is fatally defective. When a petition
       is presented to a court that does not comply with R.C. 2725.04(D), there is
       no showing of how the commitment was procured and there is nothing
       before the court on which to make a determined judgment except, of
       course, the bare allegations of petitioner's application.

Bloss v. Rogers, 65 Ohio St.3d 145, 146, 602 N.E.2d 602 (1992).
       {¶10} Here, Marrero only attached the first page of the July 8, 2010 judgment
entry of conviction and sentence from Case No. 08CR075288, and this sole page does
not include his sentence or the trial judge's signature. The fact that the warden filed the
complete judgment entry with her motion to dismiss does not cure the deficiency in
Marrero's petition. Day v. Wilson, 116 Ohio St.3d 566, 2008-Ohio-82, 880 N.E.2d 919,
¶4. Furthermore, while Marrero attached the complete judgment entry to his motion for
leave to amend, we have held that "failure to include commitment papers with the initial
petition for writ of habeas corpus cannot be cured by later submissions or amendments to
the petition." Thomas v. Eberlin, 7th Dist. No. 08 BE 14, 2008-Ohio-4663, ¶8, citing Boyd
v. Money, 82 Ohio St.3d 388, 696 N.E.2d 568 (1998). For this reason, Marrero's petition
is dismissed.
       {¶11} Costs taxed against Petitioner. Final order. Clerk to serve notice on the
                                                            -4-


parties as provided by the Ohio Rules of Civil Procedure.
DeGenaro, P.J.
Donofrio, J.
Waite, J.
