, INAt. M.Au tlet.200.g CLFRK OF COURT SUPREME COURT OF 0 HI0 IN THE SUPREME COURT OF OHIO. DAVID J. PISHOK, Case No

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1 IN THE SUPREME COURT OF OHIO, INAt DAVID J. PISHOK, Case No Petitioner-Appellant, On Appeal from the Trumbull County vs. Court of Appeals, Eleventh Appellate District BENNIE KELLY, Warden, Court of Appeals Case Respondent-Appellee. No. 2008TR93 MERIT BRIEF OF RESPONDENT-APPELLEE BENNIE KELLY RICHARD CORDRAY Ohio Attorney General DAVID J. PISHOK M. SCOTT CRISS* ( ) Trumbull Correctional Institution Assistant Attorney General P.O. Box 901 *Counsel of Record Leavittsburg, Ohio E. Gay Street, 16th Floor Columbus, Ohio fax Pro Se Counsel for Respondent-Appellee M.Au tlet.200.g CLFRK OF COURT SUPREME COURT OF 0 HI0

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... iii SUMMARY OF THE ARGUMENT... 1 ARGUMENT A. Pishok's Petition Was Properly Dismissed because His Claim Of A Deficient Indictment Is Not Cognizable In A Habeas Corpus Action... 2 B. Pishok's Petition Was Properly Dismissed Because Habeas Relief Is Not Available When An Alternative Legal Remedy Is (Or Was) Available... 4 C. Pishok's Petition Was Properly Dismissed Because He Is Not Entitled To Immediate Release From Prison... 6 D. Pishok's Petition Was Procedurally Defective Because He Failed In His Affirmative Duty To Provide A Detailed List Of All Lawsuits He Has Filed In The Previous Five Years. R.C CONCLUSION... 8 CERTIFICATE OF SERVICE

3 TABLE OF AUTHORITIES CASES Page Adams v. Humphreys (1986), 27 Ohio St.3d Beard v. Williams Cty. Dept. of Social Services (1984), 12 Ohio St.3d Bellman v. Jago (1988), 38 Ohio St.3d , 5 Cornell v. Schotten (1994), 69 Ohio St.3d Davie v. Edwards (1997), 80 Ohio St.3d Fuqua v. Williams (2003), 100 Ohio St.3d Hammond v. Dallman (1992), 63 Ohio St.3d Luna u. Russell (1994), 70 Ohio St.3d , 3 Pewitt v. Superintendent, Lorain Correctional Inst., 64 Ohio St.3d 470, 1992 Ohio , 6 Pishok v. Kelly, Trumbull App. No T-0093, 2009 Ohio Rollins v. Haskins (1964), 176 Ohio St , 6 Stahl v. Shoemaker (1977), 50 Ohio St.2d State ex rel. Alford v. Winters (1997), 80 Ohio St.3d 285, 685 N.E.2d State ex rel. Jackson v. Allen (1992), 65 Ohio St.3d State ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 1995 Ohio , 6 State ex rel. Johnson v. Talikka (1994), 71 Ohio St.3d State v. Cimpritz (1953), 158 Ohio St , 4 State v. Wozniak (1961), 172 Ohio St , 3, 4 Walker v. Maxwell (1965), 1 Ohio St.2d , 4 iii

4 CASES Page Wilson v. Rogers (1993), 68 Ohio St.3d Wireman v. Ohio Adult Parole Authority (1988), 38 Ohio St.3d Zanders v. Ohio Adult Parole Authority (1998), 82 Ohio St.3d STATE CODES O. R. C O. R. C passim O.R.C iv

5 SUMMARY OF THE ARGUMENT Petitioner-Appellant David Pishok challenges the Eleventh District Court of Appeals decision dismissing his habeas corpus petition. Pishok claims that the criminal indictment from which his conviction flows was defective, robbing the trial court of jurisdiction to convict him. As the Eleventh District determined, and as the great weight of legal authority demonstrates, Pishok's claim is not cognizable in a habeas proceeding. Because he could have challenged the propriety of his indictment on direct appeal, his collateral habeas petition was properly dismissed. Moreover, Pishok's habeas petition was procedurally defective because he failed to provide a list of lawsuits against the state, as required by R.C (A). See Fuqua v. Williams (2003), 100 Ohio St. 3d 211, 6. Consequently, his petition could have been dismissed for that reason, as well. 1

6 ARGUMENT A. Pishok's Petition Was Properly Dismissed because His Claim Of A Deficient Indictment Is Not Cognizable In A Habeas Corpus Action. Habeas corpus is not available to challenge an allegedly faulty indictment. Bellman v. Jago (1988), 38 Ohio St.3d 55; Walker v. Maxwell (1965), 1 Ohio St.2d 136. The Supreme Court of Ohio has held that extraordinary remedies, such as habeas corpus, are not proper for attacking indictments. State ex rel. Johnson v. Talikka (1994), 71 Ohio St.3d 109, 111. The Ohio Supreme Court has held specifically that: Habeas corpus is not available to challenge either the validity *** or the sufficiency of an indictment. *** Luna possessed an adequate remedy by direct appeal to raise these contentions. Luna v. Russell (1994), 70 Ohio St.3d 561, 562. The cases cited in the foregoing quote are Wilson u. Rogers (1993), 68 Ohio St.3d 130; State ex rel. Jackson v. Allen (1992), 65 Ohio St.3d 37; Hammond v. Dallman (1992), 63 Ohio St.3d 666; and State v. Wozniak (1961), 172 Ohio St. 517, The Court in Luna noted that "[g]enerally, when the petitioner does not attack the jurisdiction of the court, habeas corpus will be denied." 70 Ohio St.3d at 561, citing O.R.C., ; and Stahl v. Shoemaker (1977), 50 Ohio St.2d 351, The Court also noted that habeas corpus will lie "only where there is no adequate legal remedy, e.g., appeal or postconviction relief." 70 Ohio St.3d at 561, citing State ex rel. Pirman v. Money (1994), 69 Ohio St.3d 591,

7 Habeas corpus may only be used to challenge the jurisdiction of the sentencing court. Wireman v. Ohio Adult Parole Authority (1988), 38 Ohio St.3d 322. Habeas corpus may not be used as a substitute for other forms of action, such as direct appeal, post-conviction relief or mandamus. Adams u. Humphreys (1986), 27 Ohio St.3d 43; Beard v. Williams Cty. Dept. of Social Services (1984), 12 Ohio St.3d 40. Luna held that indictments may not be reviewed in habeas corpus, primarily due to the existence of the remedy of direct appeal. In Luna the Court indicated that the existence of this other remedy is enough to remove the consideration of indictments from habeas corpus, whether the direct appeal opportunity still exists or not, as long as the habeas petitioner could have taken advantage of it previously; or still could pursue it. Even though Pishok is challenging the jurisdiction of the trial court, the Supreme Court of Ohio, in Luna and Talikka, expressly held that an attack on the indictment does not amount to the type of jurisdictional challenge that would allow the review of a case in habeas corpus. Therefore, the court of appeals properly dismissed the action, since direct appeal was the proper avenue to raise this claim. As the court below properly found, Pishok's reliance on State V. Cimpritz (1953), 158 Ohio St. 490, is misplaced Under Wozniak, a collateral proceeding, such as a habeas corpus action, can only be employed to challenge the propriety of an indictment when the underlying criminal case still remains pending. However, once the conviction has been entered the indictment can no longer be subject to a collateral attack. Instead, the defendant's sole remedy is to raise the issue as part of his direct appeal. 3

8 { 11} Notwithstanding the Wozniak precedent, defendants have still tried to rely upon Cimpritz to justify the filing of a habeas corpus action following the completion of the criminal case. In Midling v. Perrini (1968), 14 Ohio St.2d 106, the defendant argued that a collateral attack was still permissible after conviction because the Cimpritz court had stated that a judgment of conviction must be declared void if it is predicated upon an insufficient indictment. Citing Wozniak, the Midling court indicated that the use of the word "void" in Cimpritz had been inappropriate; instead, the prior opinion should have stated that an insufficient indictment only renders a judgment of conviction voidable. Id., at 107. Based upon this, the Midling court expressly held that a post-conviction habeas corpus action was not a proper means for seeking relief from a defective indictment: Pishok v. Kelly, Trumbull App. No T-0093, 2009 Ohio 287. Accordingly, the court of appeals should be affirmed. B. Pishok's Petition Was Properly Dismissed Because Habeas Relief Is Not Available When An Alternative Legal Remedy Is (Or Was) Available. Habeas corpus is an extraordinary remedy and normally is appropriate only when there is no alternative legal remedy. State ex rel. Jackson U. McFaul, 73 Ohio St.3d 185, 1995-Ohio-228. Habeas relief is available only when the petitioner is entitled to immediate release from confinement. Id.; Pewitt v. Superintendent, Lorain Correctional Inst., 64 Ohio St.3d 470, 1992-Ohio-91; Rollins u. Haskins (1964), 176 Ohio St. 394; R. C , et seq.; R. C follows: In Walker v. Maxwell (1965), 1 Ohio St.2d 136, , the Court stated as The General Assembly has provided an adequate post-conviction remedy by appeal for the review of alleged errors in the conviction of an accused, and, once a conviction is had, prior irregularities merge into the judgment and must be raised by appeal. The validity of such judgment cannot be questioned by collateral attack. State v. Wozniak, 172 Ohio St. 517; and Perry v. Maxwell, Warden, 175 Ohio St

9 This remedy is available to all persons as a matter or right within 30 days after conviction and by motion for leave to appeal at any time. Where an accused has failed to pursue his appeal within the statutory period for appeals as a matter or right, he had available to him the motion for leave to appeal. This is not an empty right. If the accused can show reasonable grounds for his delay in pursuing his appeal as a matter of right within the statutory period or if the failure to grant such appeal would result in a clear miscarriage of justice, to deny such motion would constitute an abuse of discretion. That habeas corpus is not the proper remedy after conviction for the review of errors or irregularities has been pointed out many times. If a direct appeal is or was available, relief in habeas corpus is not available. Davie v. Edwards (1997), 80 Ohio St.3d 170. As long as the petitioner had adequate legal remedies for the issues of which he complains through direct appeal and petitions for post-conviction relief, the issues may not be addressed in a petition for habeas corpus. Cornell v. Schotten (1994), 69 Ohio St.3d 466. "Habeas corpus 'is not and never was a postconviction remedy for the review of errors or irregularities of an accused's conviction or for a retrial of the guilt or innocence of an accused."' Bellman v. Jago (1988), 38 Ohio St.3d 55, 56. Pishok had adequate remedies at law that now preclude relief in habeas. The claims he raised below, attacking the indictment itself, the constitutionality of the criminal statute, and the quality of evidence against him, are all direct appeal claims. Pishok was never denied the opportunity to present his claims in his direct appeal. Because Pishok had an adequate, alternative remedy in which to present his claims, they cannot be heard in a habeas corpus action and must be dismissed. 5

10 C. Pishok's Petition Was Properly Dismissed Because He Is Not Entitled To Immediate Release From Prison. Habeas relief is available only when the petitioner is entitled to immediate release from confinement. State ex rel. Jackson u. McFaul, 73 Ohio St.3d 185, Ohio-228; Pewitt v. Superintendent, Lorain Correctional Inst., 64 Ohio St.3d 470, 1992-Ohio-91; Rollins u. Haskins (1964), 176 Ohio St. 394; R. C , et seq.; R. C In the instant case, Pishok was sentenced to an aggregate term of twenty-one years imprisonment. Pishok's institutional records from the Ohio Department of Rehabilitation and Corrections indicate that he was admitted into custody on January 17, His projected expiration of sentence date is July 11, Pishok is not entitled to a writ of habeas corpus because his sentence has not expired. D. Pishok's Petition Was Procedurally Defective Because He Failed In His Affirmative Duty To Provide A Detailed List Of All Lawsuits He Has Filed In The Previous Five Years. R.C The law at issue provides that: At the time that an inmate commences a civil action or appeal against a government entity or employee, the inmate shall file with the court an affidavit that contains a description of each civil action or appeal of a civil action the inmate has filed in the previous five years in any state or federal court. The affidavit shall include all of the following for each of those civil actions or appeals: (1) A brief description of the nature of the civil action or appeal; (2) The case name, case number, and the court in which the civil action or appeal was brought; 6

11 (3) The name of each party to the civil action or appeal; (4) The outcome of the civil action or appeal, including whether the court dismissed the civil action or appeal as frivolous or malicious under state or federal law or rule of court, whether the court made an award against the inmate or the inmate's counsel of record for frivolous conduct *** and, if the court so dismissed the action or appeal or made an award of that nature, the date of the final order affirming the dismissal or award. R.C (A)(1)-(4) (emphasis added). Good cause exists to dismiss Pishok's habeas action for failing to list the lawsuits he has previously filed, if any. The provisions state that actions or claims that have been filed before can be dismissed from the action in question. R.C (A)(2) and (B)(4). Further, if a prison inmate filed three or more actions in any twelve month period, then the Court may appoint a "member of the bar to review the claim *** and make a recommendation regarding whether the claim asserted *** [is] frivolous or malicious under section of the Revised Code, any other provision of the law, or rule of court." R.C (B). Without this information, the court is unable to decide whether a Plaintiff has complied with these mandatory requirements to proceed in a lawsuit against the State. In the instant petition, Pishok did not fulfill the requirements set forth in R.C (A) to properly file a complaint against a government employee. Plaintiffs failure to comply with the provisions of R.C requires dismissal. Zanders v. Ohio Adult Parole Authority (1998), 82 Ohio St.3d 421; See State ex rel. Alford v. Winters (1997), 80 Ohio St.3d 285, 286, 685 N.E.2d

12 CONCLUSION The Eleventh District Court of Appeals properly found that Pishok is not entitled to habeas corpus relief because his claims are not cognizable and because he had an alternative legal remedy. Additionally, Pishok's maximum sentence has not expired and he failed to comply with R.C For the foregoing reasons, Respondent respectfully requests that the Court of Appeals be affirmed. M. lscc)riss-(ii(t68105) Assistan ttorney General Criminal Justice Section 150 E. Gay Street, 16th Floor Columbus, Ohio (614) scott. crissg>ohioattorneyeeneral. aov Counsel for Respondent 8

13 CERTIFICATE OF SERVICE I hereby certify that a true and accurate copy of the foregoing Merit Brief of Respondent-Appellee Bennie Kelly has been forwarded to David J. Pishok, # , Trumbull Correctional Institution, 5701 Burnett Road, P.O. Box 90, 1 eavittsburg, Ohio via regular U. S. Mail this 8th day of May