[Cite as Alls v. Miller, 2016-Ohio-2793.]
                             STATE OF OHIO, BELMONT COUNTY

                                   IN THE COURT OF APPEALS

                                            SEVENTH DISTRICT


STATE OF OHIO, ex rel.                            )    CASE NO. 15 BE 0043
JAMES M. ALLS                                     )
                                                  )
        PETITIONER                                )
                                                  )    OPINION AND
VS.                                               )    JUDGMENT ENTRY
                                                  )
MICHELE MILLER, WARDEN                            )
                                                  )
        RESPONDENT                                )

CHARACTER OF PROCEEDINGS:                              Petition for Writ of Habeas Corpus

JUDGMENT:                                              Dismissed.

APPEARANCES:

For Petitioner:                                        James M. Alls, Pro se
                                                       #A648-635
                                                       Belmont Correctional Institution
                                                       P.O. Box 540
                                                       St. Clairsville, Ohio 43950


For Respondent:                                        Atty. Mike DeWine
                                                       Attorney General of Ohio
                                                       Atty. Mary Anne Reese
                                                       Assistant Attorney General
                                                       Criminal Justice Section
                                                       441 Vine Street, Suite 1600
                                                       Cincinnati, Ohio 45202


JUDGES:

Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Hon. Carol Ann Robb
                                                       Dated: April 25, 2016
[Cite as Alls v. Miller, 2016-Ohio-2793.]
PER CURIAM.


        {¶1}     Petitioner James M. Alls is an inmate at the Belmont Correctional

Institution in Belmont County, Ohio. He has filed a petition for writ of habeas corpus

against Michele Miller, Warden of the institution where he is incarcerated.

Respondent has filed a motion for summary judgment seeking dismissal of the

petition. Respondent’s motion is sustained and the petition is dismissed.

                                               Background

        {¶2}     In February of 2012, Petitioner pleaded guilty in Case No. 11CR-02-

1081 in Franklin County Court of Common Pleas to one count of aggravated robbery,

a first-degree felony pursuant to R.C. 2911.01. He also pleaded guilty to one count

of felonious assault, a second-degree felony under R.C. 2903.11. Other charges

were dismissed. The same day, on joint recommendation from both defense counsel

and the prosecutor, the court sentenced Petitioner to an aggregate sentence of

fifteen years of imprisonment:              nine for aggravated robbery and six for felonious

assault. This sentence was to run consecutively, and consecutively with an earlier

four-year sentence imposed on Petitioner in Washington County for drug trafficking.

Petitioner was notified as to his period of post-release control. (2/14/12 J.E.)

        {¶3}     While Petitioner filed a pro se appeal, it was dismissed by the Tenth

Appellate District for failure to prosecute. (4/19/12 Order, Tenth District Case No.

12AP-170.) More than two years later, Petitioner sought a delayed appeal from the

court, which was denied. (6/16/14 Order.) His attempt to appeal this denial to the

Ohio Supreme Court failed when the Court declined to accept jurisdiction. (10/22/14

Order, Ohio Supreme Court.)
                                                                                     -2-

      {¶4}   In May of 2015, Petitioner filed a federal petition seeking habeas corpus

pursuant to 28 U.S.C. §2254. The matter was filed in the Southern District of Ohio

and assigned Case No. 2:15CV02323.           In this petition, he attacked the Ohio

appellate court’s decision to deny his request for delayed appeal. This petition was

dismissed the following month.

      {¶5}   On July 8, 2015, Petitioner filed his present petition with this Court. In

it, he appears to allege that he is being held under a void sentencing order and that

Ohio Courts of Common Pleas have no jurisdiction over felony criminal cases. On

August 3, 2015, Respondent filed a motion seeking summary judgment.

                                       Analysis

      {¶6}   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, may

      prosecute a writ of habeas corpus, to inquire into the cause of such

      imprisonment, restraint, or deprivation.

      {¶7}   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 of law, such as a direct appeal or postconviction relief.

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). 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).
                                                                                        -3-

       {¶8}   Respondent has requested summary judgment in the matter. Summary

judgment is governed by Civ.R. 56(C). Pursuant to Civ.R. 56(C), a trial court shall

grant a motion for summary judgment if, after construing the evidence in a light most

favorable to the nonmoving party, the court finds an absence of a genuine issue of

material fact and that reasonable minds can reach only one conclusion, that the

moving party is entitled to judgment as a matter of law. State ex rel. Sweeting v.

Starr, 7th Dist. No. 14 NO 412, 2014-Ohio-5505, ¶ 3, citing State ex rel. Parsons v.

Fleming, 68 Ohio St.3d 509, 511, 628 N.E.2d 1377 (1994).              Additionally, if the

petition fails to 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. N. Cent. Correctional Inst., 7th Dist.

No. 04 BE 51, 2005-Ohio-2383, ¶ 5.

       {¶9}   When a civil action is filed against a governmental entity or employee,

R.C. 2969.25(A) requires the petitioner to file an affidavit with the petition describing

all civil actions and appeals he or she has filed in state or federal court within the past

five years. Compliance with R.C. 2969.25(A) is mandatory, and 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). While Petitioner

did list certain previously filed actions in his request for the writ, Respondent

accurately points out that Petitioner failed to include his earlier petition for writ of

habeas corpus with the federal court. That petition was dismissed one day after

Petitioner filed for voluntary dismissal of the petition. Regardless, and as noted by
                                                                                    -4-

Respondent, failure to comply with the provisions of R.C. 2969.25(A) requires

dismissal of the petition. Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533,

797 N.E.2d 982; State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 422,

696 N.E.2d 594 (1998); Smith v. Buchanan, 7th Dist. No. 13 NO 407, 2014-Ohio-359,

Clark v. Miller, 7th Dist. No. 13 BE 13, 2013-Ohio-2958; Womack v. Warden of

Belmont Correctional Inst., 7th Dist. No. 04 BE 58, 2005-Ohio-1344.

      {¶10} In addition, the availability of a legal remedy precludes an action in

habeas corpus. State ex rel. Massie v. Rogers, 77 Ohio St.3d 449, 450, 674 N.E.2d

1383 (1997). Petitioner did not pursue the direct appeal he filed after conviction and

sentence. It is well settled that sentencing errors cannot be attacked through an

action in habeas corpus. Id.; Roberts v. Knab, 131 Ohio St.3d 60, 2012-Ohio-56, 960

N.E.2d 457, ¶ 1.     Habeas corpus is not the appropriate vehicle for reviewing

allegations of sentencing errors when that sentence was made by a court of proper

jurisdiction. Wayne v. Bobby, 7th Dist. No. 02 BE 72, 2003-Ohio-3882, ¶ 14, citing

R.C. 2725.05; Majoros v. Collins, 64 Ohio St.3d 442, 596 N.E.2d 1038 (1992); State

ex rel. Wynn v. Baker, 61 Ohio St.3d 464, 575 N.E.2d 208 (1991). Where direct

appeal and postconviction relief are available to challenge a sentence, a habeas

petition may properly be dismissed. Rogers, supra.

      {¶11} Petitioner generally (and confusingly) argues that he is being held

pursuant to a void sentencing entry and that the courts of common pleas have no

jurisdiction over felony criminal cases. To the extent that he appears to allege errors

in his sentencing entry, these should have been raised by him in his abandoned
                                                                                        -5-

appeal and are not cognizable in habeas corpus. Childers v. Wingard, 83 Ohio St.3d

427, 700 N.E.2d 588 (1998).

       {¶12} We further note that Petitioner’s confused and confusing assertion that

the trial court had no jurisdiction over his case is also meritless. It is well settled law

that Ohio courts of common pleas have original jurisdiction to enter convictions and

sentences of felonies committed by adults. See e.g. R.C. 2931.03; State ex rel. Pruitt

v. Donnelly, 129 Ohio St.3d 498, 2011-Ohio-4203, 954 N.E.2d 117.

       {¶13} While Respondent raises additional arguments in support of her

argument in summary judgment, it is apparent that for all of the above reasons,

habeas is not warranted in this matter.

                                       Conclusion

       {¶14} Because Petitioner failed to attach a complete affidavit of all prior civil

actions filed by him as required by statute and because his claimed sentencing error

is not reviewable in habeas corpus, the petition seeking habeas corpus is hereby

dismissed.

       {¶15} Costs taxed against Petitioner. Final order. Clerk to serve notice as

provided by the Civil Rules.


Waite, J., concurs.

DeGenaro, J., concurs.

Robb, J., concurs.
