[Cite as State ex rel. DeJusus v. Miller, 2012-Ohio-2717.]


                              STATE OF OHIO, BELMONT COUNTY

                                    IN THE COURT OF APPEALS

                                          SEVENTH DISTRICT

STATE ex rel. MIGUEL VALENTIN                       )
GALINDO DeJUSUS,                                    )
                                                    )        CASE NO.    12 BE 17
        PETITIONER,                                 )
                                                    )           OPINION
        - VS -                                      )             AND
                                                    )        JUDGMENT ENTRY
MICHELE MILLER, WARDEN,                             )
BELMONT CORRECTIONAL                                )
INSTITUTION,                                        )
                                                    )
        RESPONDENT.                                 )

CHARACTER OF PROCEEDINGS:                                Petitioner’s Petition for Writ of Habeas
                                                         Corpus; Respondent’s Motion to Dismiss.

JUDGMENT:                                                Petition for Writ of Habeas Corpus Denied;
                                                         Motion to Dismiss Granted.

APPEARANCES:
For Petitioner:                                          Miguel Valentin Galindo DeJusus, Pro Se
                                                         #A620-358
                                                         Belmont Correctional Institution
                                                         P.O. Box 540
                                                         St. Clairsville, Ohio 43950

For Respondent:                                          Attorney Michael DeWine
                                                         Attorney General
                                                         Attorney Stephanie Watson
                                                         Assistant Attorney General
                                                         Criminal Justice Section
                                                         150 East Gay Street, 16th Floor
                                                         Columbus, Ohio 43215

JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite

                                                         Dated: June 18, 2012
[Cite as State ex rel. DeJusus v. Miller, 2012-Ohio-2717.]


PER CURIAM.


        ¶{1}     Petitioner Miguel Valentin Galindo DeJusus has filed a petition for writ of
habeas corpus claiming his incarceration is unlawful due to alleged errors in the
postrelease control sentence he received from the Stark County Common Pleas Court.
4/11/12 Petition. Respondent Michelle Miller, Warden of Belmont Correctional Institute
in St. Clairsville, Ohio, answered by filing a motion to dismiss. The dismissal motion is
supported by three arguments.               First, that the extraordinary writ of habeas is not
available to correct post release control sentencing errors. Second, that the sentence
has not expired and thus, he is not entitled to immediate release. Third, petitioner has
failed to comply with the mandatory requirements of R.C. 2969.25. For the reasons
explained more fully below, all three of respondent’s arguments are correct and thus,
the writ is denied and motion to dismiss is granted.
                                        STATEMENT OF CASE
        ¶{2}     In October 2011, petitioner was convicted in Stark County Common
Pleas Court of Disrupting Public Services, a violation of R.C. 2909.04(A)(1), fourth
degree felony and two counts of misdemeanor Domestic Violence, in violation of R.C.
2919.25(A).       Petitioner received a 14 month sentence for the Disrupting Public
Services conviction and 6 months on each of the domestic violence convictions. As
part of his sentence, petitioner was advised that upon his release from prison he could
serve an optional period of up to three years of postrelease control pursuant to R.C.
2967.28. 10/25/11 J.E.
        ¶{3}     The online docket for the Stark County Clerk of Courts shows that
petitioner appealed his conviction and sentence. Oral arguments were scheduled for
May 8, 2011.
        ¶{4}     Petitioner is currently serving his sentence in Belmont Correctional
Institute. The Ohio Department of Rehabilitation and Correction website shows that
petitioner’s release date is October 5, 2012.
        ¶{5}     Petitioner filed his petition for habeas corpus on April 11, 2012, during
the pendency of the appeal, but prior to the expiration of his sentence.
                                                                                     -2-


                                       ANALYSIS
       ¶{6}   “[H]abeas corpus lies only if the petitioner is entitled to immediate
release from confinement.” State ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 188,
652 N.E.2d 746 (1995).        In habeas corpus cases, the burden of proof is on the
petitioner to establish his 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). “Like other extraordinary-writ actions, habeas corpus is not available when
there is an adequate remedy in the ordinary course of law.” In re Complaint for Writ of
Habeas Corpus for Goeller, 103 Ohio St.3d 427, 2004–Ohio–5579, 816 N.E.2d 594, ¶
6.
       ¶{7}   Respondent’s first argument in support of the motion to dismiss is that
the extraordinary writ of habeas is not available to correct postrelease control
sentencing errors. It is of the position that there is an adequate remedy of law by
means of an appeal.
       ¶{8}   We agree with Respondent. The Ohio Supreme Court has previously
explained that petitioners claiming that they did not receive proper notification about
postrelease control at the sentencing hearing have an adequate remedy by way of a
direct appeal from the sentence. Patterson v. Ohio Adult Parole Auth., 120 Ohio St.3d
311, 2008-Ohio-6147, 898 N.E.2d 950, ¶ 8, citing Watkins v. Collins, 111 Ohio St.3d
425, 2006-Ohio-5082, 857 N.E.2d 78, ¶ 45. In Watkins, the Court not only stated that
the remedy for improper notification about postrelease control at the sentencing
hearing is resentencing, not release from prison, but also stated that “habeas corpus is
not available to contest any error in the sentencing entries, and petitioners have or had
an adequate remedy by way of appeal to challenge the imposition of postrelease
control.” Watkins at ¶ 45 and 53. In Patterson, it expanded upon these statements
and added that it has “never held that these claims can be raised by extraordinary writ
when the sentencing entry includes postrelease control, however inartfully it might be
phrased.” Patterson at ¶ 8.
       ¶{9}   Here, the sentencing entry orders petitioner to serve “an optional period
of up to three (3) years of post-release control.”      11/25/11 J.E.    That statement
constitutes a postrelease control sentence. Thus, based on Patterson and Watkins,
                                                                                      -3-


the legality of the postrelease control sentence cannot be raised through a petition for
habeas corpus because there is an adequate remedy at law. The issue of whether it
is a legal postrelease control sentence must be attacked through the direct appeal.
Petitioner has availed himself of that adequate remedy; as stated above, the appeal
from that conviction and sentencing order is currently pending before the Fifth
Appellate District, the proper forum to raise the postrelease control argument.
       ¶{10} Respondent’s second argument as to why the petition should be denied
is based on the fact that Petitioner’s sentence has not expired.            We find that
Respondent is also correct in this position.       It has been consistently held that a
petitioner is not entitled to relief via habeas corpus unless his maximum sentence has
expired and the petitioner is being held unlawfully. In re Pianowski, 7th Dist. No.
03MA16, 2003-Ohio-3881, ¶ 16, citing Heddleston v. Mack, 82 Ohio St.3d 213, 214,
702 N.E.2d 1198 (1998).       As aforementioned, Petitioner’s maximum term will not
expire until October 5, 2012. Thus, even if he could raise the issue of postrelease
control through a petition for habeas corpus, he would not be entitled to relief until the
expiration of the maximum term.
       ¶{11} Respondent’s third argument for dismissal is based on procedural
defects in the petition, i.e. failure to comply with R.C. 2969.25.
       ¶{12} R.C. 2969.25(A) requires an inmate, at the time of commencing a civil
action against a government entity, to file an affidavit containing a description of each
civil action the inmate has filed in the last five years in any state or federal court. The
Ohio Supreme Court has held that the requirements in R.C. 2969.25 apply to state
habeas corpus actions. Fuqua v. Williams, 100 Ohio St. 3d 211, 2003-Ohio-5533, 797
N.E.2d 982, ¶ 6-9.
       ¶{13} At the time of filing the petition, petitioner did not file an affidavit as
required by R.C. 2969.25. It has previously been explained that compliance with the
provisions of R .C. 2969.25 is mandatory and the failure to satisfy the statutory
requirements is grounds for dismissal. State ex rel. Washington v. Ohio Adult Parole
Auth., 87 Ohio St.3d 258, 259, 719 N.E.2d 544 (1999); State ex rel. Zanders v. Ohio
Parole Bd., 82 Ohio St.3d 421, 422, 696 N.E.2d 594 (1998). Thus, in addition to
                                                                                    -4-


substantive grounds for dismissal, the petition is also dismissed for failing to comply
with the procedural requirements in R.C. 2969.25.
      ¶{14} In conclusion, the alleged illegality of the postrelease control sentence is
not cognizable in habeas. Furthermore, petitioner’s maximum term has not expired
and thus, habeas is not available even if the postrelease control issue could be raised.
Lastly, procedurally petitioner failed to file an affidavit as required by R.C. 2969.25.
Therefore, for those reasons, the writ is denied and the motion to dismiss is granted.
      ¶{15} Final order. Clerk to serve notice as provided by the Civil Rules.




Vukovich, J., concurs.
Donofrio, J., concurs.
Waite, P.J., concurs.
