[Cite as Curley v. Marquis, 2017-Ohio-700.]

                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


RICHARD L. CURLEY                             :     JUDGES:
                                              :     Hon. W. Scott Gwin, P.J.
        Petitioner                            :     Hon. Earle E. Wise, J.
                                              :     Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :
WARDEN DAVID MARQUIS                          :     Case No. 16CA65
                                              :
        Respondent                            :     OPINION



CHARACTER OF PROCEEDING:                            Writ of Habeas Corpus




JUDGMENT:                                           Dismissed




DATE OF JUDGMENT:                                   February 24, 2017




APPEARANCES:

For Petitioner                                      For Respondent

RICHARD L. CURLEY, pro se                           STEPHANIE L. WATSON
P.O. Box 8107                                       Principal Assistant Attorney General
Mansfield, Ohio 44901                               Criminal Justice Section
                                                    150 East Gay Street, 16th Floor
                                                    Columbus, Ohio 43215-6001
«Court» County, Case No. «Case_No»                                               2

Baldwin, J.

       {¶1}   Petitioner, Richard L. Curley, has filed a Petition for State Writ of Habeas

Corpus arguing he is entitled to release from prison because the trial court lacked subject

matter jurisdiction over Petitioner and Petitioner’s case. Respondent has filed a motion

to dismiss for failure to state a claim upon which relief may be granted.

       {¶2}   On February 21, 2001, Petitioner was convicted in the Summit County Court

of Common Pleas of seven counts of burglary. He was sentenced to three years in prison

on each count which were ordered to be served consecutive to one another for a total

term of incarceration of 21 years.

       {¶3}   R.C. 2725.01 provides that “[w]hoever 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.”

       {¶4}   Petitioner argues the trial court lacked jurisdiction because no complaint

was filed prior to his initial appearance and because the indictment was invalid.

       {¶5}   The Supreme Court has held, “Habeas corpus is not available to challenge

any defect “ ‘caused by the alleged failure to file criminal complaints or the claimed

impropriety of the [trial] court's assumption of jurisdiction over [criminal] charges.’ ” Harris

v. Bagley, 97 Ohio St.3d 98, 2002-Ohio-5369, 776 N.E.2d 490, ¶ 3, quoting Taylor v.

Mitchell, 88 Ohio St.3d 453, 454, 727 N.E.2d 905 (2000). “ ‘The manner by which an

accused is charged with a crime is procedural rather than jurisdictional, and after a

conviction for crimes charged in an indictment, the judgment binds the defendant for the

crime for which he was convicted.’ ” State ex rel. Nelson v. Griffin, 103 Ohio St.3d 167,
«Court» County, Case No. «Case_No»                                          3

2004-Ohio-4754, 814 N.E.2d 866, ¶ 6, quoting Orr v. Mack, 83 Ohio St.3d 429, 430, 700

N.E.2d 590 (1998).” State ex rel. Rackley v. Sloan, 2016-Ohio-3416, ¶ 6.

      {¶6}   An alleged failure to file a complaint is not an available basis to obtain

habeas corpus relief.

      {¶7}   Further, with regard to Petitioner’s challenge to his indictment, the Supreme

Court has held, “[H]abeas corpus is not an appropriate means to challenge the validity of

an indictment; that may be done only on direct appeal. State ex rel. Arroyo v. Sloan, 142

Ohio St.3d 541, 2015-Ohio-2081, 33 N.E.3d 56, ¶ 5; State ex rel. Hadlock v. McMackin,

61 Ohio St.3d 433, 434, 575 N.E.2d 184 (1991) (“A defendant may challenge the

sufficiency of the indictment only by a direct appeal, and not through habeas corpus”).”

Robinson v. LaRose, 147 Ohio St.3d 473, 2016-Ohio-7647, ¶ 7 (2016).

      {¶8}   Because habeas corpus relief in not available to challenge a complaint, or

lack thereof, or to challenge a defect in an indictment, the requested writ cannot

issue. For these reasons, the motion to dismiss is granted.

By: Baldwin, J.

Gwin, P.J. and

Wise, Earle, J. concur.



                                          HON. CRAIG R. BALDWIN



                                          HON. W. SCOTT GWIN



                                          HON. EARLE E. WISE, JR.,


CRB/as
[Cite as Curley v. Marquis, 2017-Ohio-700.]


                  IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


RICHARD L. CURLEY                               :
                                                :
        Petitioner                              :
                                                :
-vs-                                            :        JUDGMENT ENTRY
                                                :
WARDEN DAVID MARQUIS                            :
                                                :
        Respondent                              :        CASE NO. 16CA65


        For the reasons stated in our accompanying Memorandum-Opinion, the complaint

is dismissed. Costs are assessed to petitioner.




                                              HON. CRAIG R. BALDWIN



                                              HON. W. SCOTT GWIN



                                              HON. EARLE E. WISE, JR.
