DeVore v. Black
| Decision Date | 15 September 2021 |
| Docket Number | 2021-0199 |
| Citation | 166 Ohio St.3d 311,185 N.E.3d 1025 |
| Parties | DEVORE, Appellant, v. BLACK, Warden, Appellee. |
| Court | Ohio Supreme Court |
Adam M. DeVore, pro se.
Dave Yost, Attorney General, and William H. Lamb, Assistant Attorney General, for appellee.
{¶ 1} Appellant, Adam M. DeVore, is incarcerated in the Richland Correctional Institution, where appellee, Kenneth Black, is the warden. DeVore appeals the Fifth District Court of Appeals’ judgment dismissing his habeas corpus complaint against Black for failure to comply with R.C. 2969.25(A) and failure to state a cognizable claim for relief in habeas corpus. We affirm.
{¶ 2} In February 2018, DeVore was convicted in the Ashland County Common Pleas Court of abduction and domestic violence and sentenced to consecutive 36-month prison terms. The Fifth District affirmed his convictions. See State v. DeVore , 5th Dist. Ashland No. 18-COA-011, 2018-Ohio-4189, 2018 WL 5014532, ¶ 108.
{¶ 3} Following the affirmance of his convictions, DeVore filed an application to reopen his appeal under App.R. 26(B). One of DeVore's proposed assignments of error in the application was that abduction and domestic violence are allied offenses of similar import and, therefore, he should not have been sentenced for both. See R.C. 2941.25(A). The court of appeals denied DeVore's application, determining that DeVore "committed separate and distinct crimes and the offenses were separated by time and occurred in different locations." The court of appeals therefore held that DeVore's appellate counsel was not ineffective for failing to raise an allied-offenses argument. See R.C. 2941.25(B) ().
{¶ 4} On November 30, 2020, DeVore filed a complaint for a writ of habeas corpus in the Fifth District, requesting his immediate release from prison. Citing the "separated by time and occurred in different locations" language included in the court of appeals’ judgment denying his App.R. 26(B) application for reopening, DeVore alleged that his conviction for domestic violence was necessarily for conduct that occurred at a time and place different from that alleged in the indictment for the offense. DeVore accordingly argued that his domestic-violence conviction was void and that he is entitled to immediate release because he had already served the full 36-month prison term relating to his abduction conviction.
{¶ 5} Black filed a motion to dismiss DeVore's complaint under Civ.R. 12(B)(6). The court of appeals granted Black's motion and dismissed the complaint. 2021-Ohio-198, 2021 WL 286276, ¶ 12. The court of appeals held that DeVore had failed to comply with R.C. 2969.25(A) and also that his complaint failed to state a cognizable claim for relief in habeas corpus. Id. at ¶ 4-6, 8-10.
{¶ 6} DeVore timely appealed to this court as of right.
{¶ 7} This court reviews the dismissal of a habeas corpus complaint under Civ.R. 12(B)(6) de novo. State ex rel. Norris v. Wainwright , 158 Ohio St.3d 20, 2019-Ohio-4138, 139 N.E.3d 867, ¶ 5. Generally, a writ of habeas corpus is available only when the petitioner's maximum sentence has expired and he is being held unlawfully, Leyman v. Bradshaw , 146 Ohio St.3d 522, 2016-Ohio-1093, 59 N.E.3d 1236, ¶ 8, or when the sentencing court patently and unambiguously lacked subject-matter jurisdiction, Stever v. Wainwright , 160 Ohio St.3d 139, 2020-Ohio-1452, 154 N.E.3d 55, ¶ 8. For alleged nonjurisdictional errors, habeas corpus is not available when the petitioner has or had an adequate remedy in the ordinary course of the law. Kneuss v. Sloan , 146 Ohio St.3d 248, 2016-Ohio-3310, 54 N.E.3d 1242, ¶ 6.
{¶ 8} The court of appeals was correct to dismiss DeVore's habeas complaint because it failed to state a valid claim for relief. DeVore was convicted of abduction and domestic violence, which were both alleged to have occurred between January 7 and 9, 2017. In his App.R. 26(B) application, DeVore argued that his appellate counsel rendered ineffective assistance by not arguing that those two convictions should have been merged for sentencing purposes. In its judgment denying DeVore's App.R. 26(B) application, the court of appeals referred to evidence of a domestic-violence incident that, DeVore contends, was not the domestic-violence incident charged in the indictment. DeVore therefore claims that he was convicted of an uncharged offense and is consequently entitled to relief in habeas corpus.
{¶ 9} The court of appeals properly rejected this argument. DeVore's theory that he was convicted of an uncharged offense does not present a jurisdictional defect that may be challenged in an extraordinary action. See Gunnell v. Lazaroff , 90 Ohio St.3d 76, 734 N.E.2d 829 (2000). Such an argument is an attack upon the sufficiency of the indictment, which is not cognizable in habeas corpus. Id. at 76-77, 734 N.E.2d 829. Moreover, to the extent that there was any potential trial error or sentencing error regarding DeVore's domestic-violence conviction, DeVore had an adequate remedy to address it by way of appeal.
{¶ 10} For the foregoing reasons, the court of appeals properly dismissed DeVore's habeas corpus complaint.
Judgment affirmed.
{¶ 11} Because an application to reopen a direct appeal under App.R. 26(B) is not a civil action, the Fifth District Court of Appeals erred in dismissing appellant Adam M. DeVore's habeas corpus complaint for failure to comply with R.C. 2969.25(A). See 2021-Ohio-198, ¶ 6, 12. R.C. 2969.25(A), which requires an inmate to file an affidavit of prior civil actions when commencing a civil action against the state, did not require DeVore to list in the affidavit a prior appeal of the denial of his application to reopen. Contrary to the majority's position today, whether an inmate has complied with R.C. 2969.25 is a threshold question that the court must answer before considering the merits of the inmate's claim, and I would not let the court of appeals’ error go uncorrected. Nonetheless, DeVore failed to state a claim for relief that is cognizable in habeas corpus, and I therefore concur in the majority's judgment affirming the dismissal of his complaint.
{¶ 12} R.C. 2969.25(A) requires an inmate who "commences a civil action or appeal against a government entity or employee" to "file with the court an affidavit that contains a description of each civil action or appeal of a civil action that the inmate has filed in the previous five years in any state or federal court." R.C. 2969.21(B)(1)(a) defines the phrase "civil action or appeal against a government entity or employee" to include a "civil action that an inmate commences against the state, a political subdivision, or an employee of the state or a political subdivision in a court of common pleas, court of appeals, county court, or municipal court." The General Assembly expressly excluded actions and appeals filed in this court from the definition of "civil action or appeal against a government entity or employee." R.C. 2969.21(B)(2).
{¶ 13} The dismissal of an action for failure to state a claim upon which relief can be granted is a ruling on the merits of the case. State ex rel. Arcadia Acres v. Ohio Dept. of Job & Family Servs. , 123 Ohio St.3d 54, 2009-Ohio-4176, 914 N.E.2d 170, ¶ 15. In contrast, a court's review of an inmate's affidavit of prior civil actions does not involve the merits of the action but only whether the inmate has complied with "the mandatory filing requirements of R.C. 2969.25," State v. Henton , 146 Ohio St.3d 9, 2016-Ohio-1518, 50 N.E.3d 553, ¶ 5. When an inmate has not satisfied those filing requirements, "the merits of any underlying claims * * * are not properly before [the] court," Rogers v. Eppinger , 154 Ohio St.3d 189, 2018-Ohio-4058, 112 N.E.3d 902, ¶ 11, and the " ‘failure to comply with [ R.C. 2969.25 ] requires dismissal of [the] inmate's complaint,’ " id. at ¶ 9, quoting State ex rel. Hall v. Mohr , 140 Ohio St.3d 297, 2014-Ohio-3735, 17 N.E.3d 581, ¶ 4.
{¶ 14} Whether an inmate has complied with R.C. 2969.25, then, is a threshold question that may not be sidestepped to reach the merits of the case. Nor may it be simply ignored, as the majority does today. For this reason, this court should review the court of appeals’ determination that DeVore's affidavit of prior actions is insufficient.
{¶ 15} In this case, the court of appeals looked at this court's docket and discovered that DeVore had previously appealed to this court the denial of his App.R. 26(B) application to reopen his direct appeal. The appellate court noted our caselaw holding that an application to reopen a direct appeal is civil in nature, and it determined that the dismissal of DeVore's habeas complaint was justified because "[the] appeal to the Ohio Supreme Court should have also been included in Mr. DeVore's Affidavit of Prior Action." 2021-Ohio-198 at ¶ 6. In the alternative, the court concluded that the dismissal of the complaint was appropriate also because DeVore had failed to state a claim cognizable in habeas corpus. Id. at ¶ 10, 12.
{¶ 16} In concluding that an application to reopen filed in an appellate court is a civil action, the Fifth District reasoned that because an application to reopen affords a civil remedy, it is a "civil action" for the purposes of R.C. 2969.25(A) ’s affidavit requirement. Id. at ¶ 5-6. The court of appeals assumed that if a matter, remedy, or proceeding is civil in nature, then it must be a "civil action." This hasty generalization—that all proceedings that are civil in nature are civil actions—caused the court of appeals to jump to the conclusion that a person filing an App.R. 26(B) application to...
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