[Cite as McKinney v. Tibbals, 2014-Ohio-592.]


                                           COURT OF APPEALS
                                        RICHLAND COUNTY, OHIO
                                       FIFTH APPELLATE DISTRICT


JERMAINE MCKINNEY                               :    JUDGES:
                                                :    Hon. William B. Hoffman, P.J.
        Petitioner                              :    Hon. Sheila G. Farmer, J.
                                                :    Hon. John W. Wise, J
-vs-                                            :
                                                :
TERRY TIBBALS, WARDEN                           :    Case No. 13 CA 65
                                                :
        Respondent                              :    OPINION




CHARACTER OF PROCEEDING:                             Habeas Corpus




JUDGMENT:                                            Dismissed




DATE OF JUDGMENT:                                    February 13, 2014




APPEARANCES:

For Petitioner                                       For Respondent

JERMAINE MCKINNEY, Pro Se                            JERRI L. FOSNAUGHT
#A520-677                                            Assistant Attorney General
1150 N. Main Street                                  150 East Gay Street, 16th Floor
Mansfield, OH 44901                                  Columbus, OH 43215
Richland County, Case No. 13 CA 65                                                        2

Farmer, J.

       {¶1}    Petitioner, Jermaine McKinney, has filed a Petition for Writ of Habeas

Corpus arguing he is entitled to immediate release from prison because he and his

attorney were denied access to the jury verdict forms filed in his case. Respondent has

filed a motion to dismiss based on the procedural defect which exists due to Petitioner’s

failure to attach a copy of all of his commitment papers. Further, Respondent argues

the petition should be dismissed because Petitioner has failed to state a claim upon

which relief may be granted. In response to the motion to dismiss, Petitioner suggests

he has attached copies of all commitment papers for those convictions he has not yet

served.      In other words, Petitioner maintains he has already served one of his

sentences which was imposed by the Mahoning County Court of Common Pleas,

therefore, he was not required to attach those commitment papers.

       {¶2}    Even assuming Petitioner is correct in his contention that he has attached

all necessary commitment papers, we find the petition fails to state a claim upon which

relief may be granted.

       {¶3}    “Dismissal under Civ.R. 12(B)(6) for failure to state a claim upon which

relief can be granted is appropriate if, after all factual allegations are presumed true and

all reasonable inferences are made in Keith's favor, it appears beyond doubt that he

could prove no set of facts entitling him to the requested extraordinary relief in habeas

corpus. State ex rel. Turner v. Houk, 112 Ohio St.3d 561, 2007-Ohio-814, 862 N.E.2d

104, ¶ 5.” Keith v. Bobby, 2008-Ohio-1443, 117 Ohio St. 3d 470, 472, 884 N.E.2d 1067,

1069 (2008).
Richland County, Case No. 13 CA 65                                                      3


      {¶4}   In general, habeas corpus is proper in the criminal context only if the

petitioner is entitled to immediate release from prison or some other physical

confinement. Crase v. Bradshaw, 108 Ohio St.3d 212, 2006-Ohio-663, 842 N.E.2d 513,

¶ 5; State ex rel. Smirnoff v. Greene (1998), 84 Ohio St.3d 165, 167, 702 N.E.2d 423.

      {¶5}   Petitioner’s sole contention is that he was deprived of the right to appeal

issues related to the jury verdict forms because both the trial court and the court of

appeals denied his counsel the opportunity to review those forms. In short, he argues

the denial of appellate review of the jury verdict forms entitles him to the issuance of a

writ of habeas corpus. Petitioner contends the jury verdict forms are void because they

do not contain every element of the offenses for which he was convicted.

      {¶6}   The Supreme Court has held, “[H]abeas corpus is not available to raise

claims of improper jury instructions or verdict forms. See, e.g., State ex rel. Richard v.

Seidner (1996), 76 Ohio St.3d 149, 152, 666 N.E.2d 1134, 1136-1137.”             Smith v.

Seidner, 1997-Ohio-224, 78 Ohio St. 3d 172, 173, 677 N.E.2d 336 (1997).

      {¶7}   Further, Petitioner has or had an adequate remedy at law by way of filing

an application to reopen his appeal pursuant to App.R. 26.         The existence of an

adequate remedy at law precludes the issuance of a writ of habeas corpus. “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.
Richland County, Case No. 13 CA 65                                                  4


      {¶8}   For these reasons, the motion to dismiss is granted. The request for writ

of habeas corpus is denied.




By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




SGF/as 131
