IN THE SUPREME COURT OF OHIO RICKY LEE AMSTUTZ Appellant, V. MICHELE EBERLIN, WARDEN, Appellee. Case No. 2008-0939 On Appeal from the Belmont County Court of Appeals Seventh Appellate District, Court of Appeals Case No. 07-BE-49 MERIT BRIEF OF APPELLEE MICHELE EBERLIN Ricky Lee Amstutz, Pro Se Belmont Correctional Institution Inmate #368-821 68518 Bannock Road, SR 331 P.O. Box 540 St. Clairsville, Ohio 45036 Appellant NANCY H. ROGERS Attorney General of Ohio DIANE MALLORY (0014867) Assistant Attomey General Corrections Litigation Section 150 East Gay Street, 16th Floor Columbus, Ohio 43215 (614) 644-7233 (614) 728-9327 Fax dmallory@ag.state.oh.us Counsel for Appellee t;i 4:liK OF COURT SUPREUIL yc7urt l7f OHIO
TABLE OF CONTENTS Page TABLE OF AUTHORITIES............ ii INTRODUCTION...1 STATEMENT OF THE CASE AND FACTS...2 ARGUMENT Proposition of Law No. 1: Claims alleging irregularities during the course of a criminal conviction are not cognizable in a habeas corpus action...3 Proposition of Law No. 2: Sentencing errors are not cognizable in a habeas corpus action...5 Proposition of Law No. 3: Appellant is not entitled to reliefunder State v. Foster 109 Ohio St.3d 1, 2006 Ohio 856... 6 Proposition of Law No. 4: Appellant has no right to release from confinement until he has served his maximum sentence...7 Proposition of Law No. 5: Successive habeas corpus petitions are not permitted in Ohio...7 Proposition of Law No. 6: Appellant's habeas petition failed to state a claim upon which reliefcould be granted and was properly dismissed on that basis by the court below....9 CONCLUSION....9 CERTIFICATE OF SERVICE...10 i
TABLE OF AUTHORITIES CASES Page Adams v. Humphreys (1986), 27 Ohio St.3d 43... 3 Amstutz v. Eberlin, 112 Ohio St.3d 1437, 2007 Ohio 152...2 Beard v. Williams Cty. Dept. of Social Services (1984), 12 Ohio St.3d 40...3 Bellman v. Jago (1988), 38 Ohio St.3d 55...4 Blakely v. Washington (2004), 542 U.S. 296...6 Burch v. Morris (1986), 25 Ohio St.3d 18...4 Childers v. WinRard, 83 Ohio St.3d 427, 1998 Ohio 27... 5 Cornell v. Schotten, 69 Ohio St.3d 466, 1994 Ohio 74...3, 4 Davie v. Edwards (1997), 80 Ohio St.3d 170...4 Dean v. Maxwell (1963), 174 Ohio St. 193...5 Everett v. Eberlin, 114 Ohio St.3d 199, 2007 Ohio 3832...8 Freeman v. Tate, 65 Ohio St.3d 440, 1992 Ohio 76...:...7, 8 Halleck v. Koloski (1965) 4 Ohio St.2d 76...7 Hogan v. Ghee, 85 Ohio St.3d 150, 1999 Ohio 445...7 Hudlin v. Alexander (1992), 63 Ohio St.3d 153...8 I.una v. Russell, 70 Ohio St.3d 561, 1994 Ohio 264...3, 5 McCleskey v. Zant (1991), 499 U.S. 467, 111 S.Ct. 1454 [113 L.Ed.2d 517]...8 O'Brien v. University Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242...9 Smith v. Walker, 83 Ohio St.3d 431, 1998 Ohio 30...7 State ex rel. Brantley v. Ohee, 80 Ohio St.3d 287, 1997 Ohio 116...7 State ex rel. Childs v. Lazaroff, 90 Ohio St.3d 519, 2001 Ohio 9...7, 8 ii
CASES Page State ex rel. Cotton v, Ghee, 82 Ohio St.3d 404, 1998 Ohio 679...7 State ex rel. Golson v. Moore, 116 Ohio St.3d 308, 2007 Ohio 6434...5, 6 State ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 1995 Ohio 228...3, 7 State ex rel. Johnson v. Hudson, 118 Ohio St.3d 308, 2008 Ohio 2451...8 State ex rel. Johnson v. Ohio Dept. of Rehab. & Con. (2002), 95 Ohio St.3d 70, 2002 Ohio 1629, [765 N.E.2d 356]...... 8 State ex rel. Massie v. Rogers, 77 Ohio St.3d 449, 1997 Ohio 258...5 State ex rel. Miller v. Leonard, 88 Ohio St.3d 46, 2000 Ohio 267...7 State ex rel. Raglin v. Brigano, 82 Ohio St.3d 410, 1998 Ohio 222...5 State ex rel. Rash v. Jackson, 102 Ohio St.3d, 2004, 2004 Ohio 2053....8 State ex rel. Shackleford v. Moore, 116 Ohio St.3d 310,2007 Ohio 6462...5, 6 State v. Amstutz (November 8, 1999), Stark App. No. 1999CA00104, 1999 Ohio App. LEXIS 5273...2 State v. Foster, 109 Ohio St.3d 1, 2006 Ohio 856...... 6 State v. Perry (1967), 10 Ohio St.2d 175...3, 5 State v. Szefcyk, 77 Ohio St.3d 93, 1996 Ohio 337...5 Ex Parte VanHaean (1874), 25 Ohio St. 426...4 Walker v. Maxwell (1965), 1 Ohio St.2d 136, 205 N.E.2d 394...3, 4 Wells v. Hudson, 113 Ohio St.3d 308, 2007 Ohio 1955....8 Wireman v. Ohio Adult Parole Authority ( 1988), 38 Ohio St.3d 322...3 iii
INTRODUCTION Appellant ("Amstutz") filed a petition for a writ of habeas corpus in which he claimed that he was entitled to immediate release from confinement because his sentence is illegal. He claimed that the sentencing court was without authority to impose more than a minimum sentence and/or to order consecutive sentences. A habcas corpus proceeding is not the proper vehicle to challenge alleged errors that occur during the course of a criminal conviction and/or during sentencing. Amstutz had an adequate, alternative remedy in which to present his claim; therefore, the claim cannot be heard in a habeas corpus action. Further, Amstutz filed a previous petition for a writ of habeas corpus in which he could have raised the claim raised herein; therefore, the habeas petition that is the subject of this appeal is successive. Successive habeas corpus petitions are not permitted in Ohio. The court below properly denied relief. 1
STATEMENT OF THE CASE AND FACTS According to his habeas petition and attached exhibits, in 1999, Amstutz entered into a negotiated plea and sentence in Stark County, Ohio. He pleaded guilty to involuntary manslaughter with a firearm specification and having weapons while under a disability and agreed to a sentence of fourteen years. His convictions were affirmed on appeal. State v. Amstutz (November 8, 1999), Stark App. No. 1999CA00104, 1999 Ohio App. LEXIS 5273. Amstutz is currently incarcerated at the Belmont Correctional Institution where he is serving that agreed sentence. Appellee is the warden at that institution. In 2006, Amstutz filed a petition for a writ of habeas corpus in this Court. His petition was dismissed by the Court sua sponte. Amstutz v, Eberlin, 112 Ohio St.3d 1437, 2007 Ohio 152. Amstutz filed the habeas petition that is the subject of this appeal as an original action in the Court of Appeals of Belmont County. He claimed that he was entitled to immediate release from confinement because his sentence is illegal. He claimed that the sentencing court was without authority to impose more than a minimum sentence and/or to order consecutive sentences. `fhe Warden filed a motion to dismiss pursuant to Civ.R. 12(B)(6) because the petition failed to state a claim on which relief could be granted. On March 31, 2008, the court granted the Warden's motion and dismissed the case. The case is before this Court pursuant to Amstutz' appeal. 2
ARGUMENT Proposition of Law No. 1: Claims alleging irregularities during the course of a criminal conviction are not cognizable in a habeas corpus action. Habeas corpus is an extraordinary remedy and normally is appropriate only when there is no alternative legal remedy. State ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 1995 Ohio 228. In the context of a criminal conviction, habeas corpus normally may be used only 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 v. Humpbrus (1986), 27 Ohio St.3d 43, Beard v. Williams Cty. Dept. of Social Services (1984), 12 Ohio St.3d 40; Walker v. Maxwell (1965), 1 Ohio St.2d 136, 205 NE2d 394. 'I'he Ohio Supreme Court, in State ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 1995 Ohio 228, held as follows: [H]abeas corpus will lie in certain extraordinary circumstances where there is an unlawful restraint of a person's liberty... but only where there is no adequate legal remedy, e.g., appeal or post-conviction relief. Id., at 186. The existence of an alternative remedy is enough to remove a petitioner's allegations from habeas consideration, whether the remedy is still available or not, as long as the petitioner could have taken advantage of it previously. See Luna v. Russell, 70 Ohio St.3d 561, 1994 Ohio 264, and State v. Perry (1967), 10 Ohio St.2d 175. Habeas corpus is not a substitute for appeal. Cornell v. Schotten, 69 Ohio St.3d 466, 1994 Ohio 74. Most errors that occur in criminal proceedings can be challenged on direct appeal. If a I The sentencing court (the Stark County Court of Common Pleas) had jurisdiction over Amstutz' case pursuant to R. C. 2931.03, which gives the courts of common pleas jurisdiction over criminal offenses that occur in their respective counties. 3
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, 69 Ohio St.3d 466, 1994 Ohio 74. Habeas corpus is not the proper mode of redress where the petitioner has been convicted of a criminal offense and sentenced to imprisonment therefor by a court of competent jurisdiction; if errors or irregularities have occurred in the proceedings or sentence, a writ of error, i.e., appeal, is the proper remedy. Ex Parte VanHagan (1874), 25 Ohio St. 426 at syllabus paragraph 2; see also Burch v. Morris (1986), 25 Ohio St.3d 18 (citing VanHa an. In Walker v. Maxwell (1965), 1 Ohio St.2d 136, 137-8, the court stated as follows: 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. 369. 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. "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. 4
Under the doctrine of res judicata, a convicted defendant is barred from litigating, in a collateral proceeding, any claim which either was raised or which could have been raised at his trial or in his direct appeal. State v. Perry (1967), 10 Ohio St.2d 175; State v. Szefeyk, 77 Ohio St.3d 93, 1996 Ohio 337. Amstutz could have challenged his sentence in a direct appeal. If another remedy exists or existed at one time, habeas relief should not be granted. Luna v. Russell, 70 Ohio St.3d 561, 1994 Ohio 264. In State ex rel. Raglin v. Brigano, 82 Ohio St.3d 410, 1998 Ohio 222, the Court held that Petitioner's attack on the validity of his indictment should have been raised in his direct appeal, thus he was not entitled to habeas relief. In other words, whether the opportunity for direct appeal still exists or not, as long as the petitioner could have taken advantage of it, habeas corpus is not an appropriate remedy. Amstutz' claim is not cognizable in this habeas corpus action. Proposition of Law No. 2: Sentencing errors are not reviewable in a habeas corpus action. This Court has repeatedly held that any alleged errors in sentencing cannot be reviewed in habeas corpus. Childers v. Wingard, 83 Ohio St.3d 427, 1998 Ohio 27. "Even assuming error in sentencing, such errors are not of the nature which are cognizable in a habeas corpus proceeding." Dean v. Maxwell (1963), 174 Ohio St. 193. Sentencing errors are not jurisdictional and are not cognizable in habeas corpus. State ex rel. Massie v. Rogers, 77 Ohio St.3d 449, 1997 Ohio 258. Direct appeal and/or post-conviction relief are the appropriate remedies to review claimed sentencing errors. Massie, supra. Extraordinary relief in habeas corpus is not available to rectify sentencing errors. State ex rel. Shackleford v. Moore, 116 Ohio St.3d 310, 2007 Ohio 6462; State ex rel. Golson v. Moore, 116 Ohio St.3d 308, 2007 Ohio 6434. 5
Proposition of Law No. 3: Appellant is not entitled to relief under State v. Foster, 109 Ohio St.3d 1, 2006 Ohio 856. Amstutz apparently believes that he is entitled to relief under State v. Foster, 109 Ohio St.3d 1, 2006 Ohio 856, in which this Court, pursuant to Blakely v. Washington (2004), 542 U.S. 296, struck down those portions of Ohio's sentencing statutes that required a judge to make findings before sentencing an offender to more-than-a-minimum sentence or to consecutive sentences. This Court limited its holding in Foster to cases pending on direct review, and held that those defendants whose cases were pending on direct review were entitled to a new sentencing hearing at which the trial court could impose any sentence within the appropriate felony range and could require multiple prison terms to be served consecutively. F'oster, at 103-106. The Foster court did not rule that criminal defendants in Ohio were entitled to a minimum sentence or to concurrent sentences. Foster does not apply to Amstutz, whose convictions and sentence were final long before Foster. Thus, he is not entitled to a new sentencing hearing. In any case, he would not be entitled to a minimum sentence or to concurrent sentences. Further, Foster does not change this Court's previous rulings that sentencing errors are not cognizable in a habeas corpus action. State ex rel. Shackleford v. Moore, 116 Ohio St.3d 310, 2007 Ohio 6462; State ex rel. Golson v. Moore, 116 Ohio St.3d 308, 2007 Ohio 6434. 6
Proposition of Law No. 4: Appellant has no right to release from confinement until he has served his maximum sentence. A writ of habeas corpus is an extraordinary remedy and is appropriate only when the petitioner is entitled to immediate release from confinement. State ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 188, 1995 Ohio 228. The burden of proof is on the petitioner to show that he is illegally detained and is, therefore, entitled to immediate release. Halleck v. Koloski (1965) 4 Ohio St.2d 76. Amstutz is serving a sentence that was imposed by a court of law of the State of Ohio. He has not demonstrated that the court was without jurisdiction to sentence him. As a convicted prisoner, he has no constitutional or inherent right to be released before the expiration of his maximum sentence. State ex rel. Miller v. Leonard, 88 Ohio St.3d 46, 2000 Ohio 267; I-Ioean v. Ghee, 85 Ohio St.3d 150, 1999 Ohio 445. Proposition of Law No. 5: Successive habeas corpus petitions are not permitted in Ohio. Amstutz filed a previous habeas petition in which he either did raise or could have raised the claim raised in the instant habeas petition. This Court has repeatedly held that the filing of successive habeas corpus petitions is barred by the doctrine of res judicata if the claim could have been raised in the earlier petition. Smith v. Walker, 83 Ohio St.3d 431, 1998 Ohio 30; State ex rel. Cotton v. Ghee, 82 Ohio St.3d 404, 1998 Ohio 679; State ex rel. Brantley v. Ghee, 80 Ohio St.3d 287, 1997 Ohio 116; Freeman v. Tate, 65 Ohio St.3d 440; 1992 Ohio 76. In State ex rel. Childs v. Lazaroff, 90 Ohio St.3d 519, 2001 Ohio 9, the Court stated: 7
Nevertheless, in Hudlin v. Alexander (1992), 63 Ohio St. 3d 153, we held that res judicata is applicable to successive habeas corpus petitions because habeas corpus petitioners have the right to appeal adverse judgments in habeas corpus cases. See, also, McCleskey v. Zant (1991), 499 U.S. 467, 479, 111 S. Ct. 1454, 1462, 113 L. Ed. 2d 517, 535 ("As appellate review became available from a decision in habeas refusing to discharge the prisoner, courts began to question the continuing validity of the common-law rule allowing endless successive [habeas corpus] petitions"). We have since consistently applied res judicata to bar petitioners from filing successive habeas corpus petitions. * * * Childs previously filed two habeas corpus actions in which he could have raised his present claim. See id., 65 Ohio St.3d at 441, 605 N. E. 2d at 15 ("In this case, the record demonstrates that appellant has previously filed at least one habeas corpus action *** in which [his successive habeas corpus claim] could have been raised"). Based on the foregoing, resjudicata barred Childs from filing successive habeas corpus petitions. Therefore, we affirm the judgment of the court of appeals. Childs, at 520-1 (citations omitted). More recently, in State ex rel. Rash v. Jackson, 102 Ohio St.3d, 2004 Ohio 2053, this Court held as follows: [**P10] In addition, res judicata barred Rash from filing a successive habeas corpus petition when he could have raised his same claim in his previous petition. State ex rel. Johnson v. Ohio Dept. of Rehab. & Corr. (2002), 95 Ohio St. 3d 70, 71, 2002 Ohio 1629, 765 N.E.2d 356. * * * [**P11] We have applied res judicata to bar petitioners from filing successive habeas corpus petitions. See, generally, State ex rel. Childs v. Lazaroff (2001), 90 Ohio St. 3d 519, 520-521, 2001 Ohio 9, 739 N.E.2d 802, and cases cited therein. In Childs, we applied res judicata to bar a successive habeas corpus petition even though it raised a potentially viable jurisdictional claim. Id. at 520, 739 N.E.2d 802. Having filed a previous habeas petition in which he could have raised the claim raised here, Amstutz is barred by res judicata from filing a successive habeas petition. State ex rel. Johnson v. Hudson, 118 Ohio St.3d 308, 2008 Ohio 2451; Wells v. Hudson, 113 Ohio St.3d 308, 2007 Ohio 1955; Everett v. Eberlin, 114 Ohio St.3d 199, 2007 Ohio 3832. 8
Proposition of Law No. 6: Appellant's habeas petition failed to state a claim upon which relief could be granted and was properly dismissed on that basis by the court below. In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. O'Brien v. University Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242. Amstutz' habeas petition claimed that he was entitled to a writ of habeas corpus and immediate release from confinement because his sentence was illegal. He can prove no set of facts which would entitle him to relief in this action because sentencing errors cannot be reviewed in a habeas corpus action. Further, his habeas petition is successive and is barred from review on that basis as well. affirmed. The lower court's dismissal of Amstutz' habeas petition was correct and should be CONCLUSION For the foregoing reasons, the Warden asks this Court to affirm the lower court decision. Respectfully submitted, NANCY H. ROGERS Attorney General of Ohio DIANE MALLORY (001486 Assistant Attorney General Corrections Litigation Section 150 East Gay Street, 16`h Floor Columbus, Ohio 43215 (614) 644-7233 9
CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was mailed by regular, first-class mail to Ricky Lee Amstutz, #368-821, Belmont Correctional Institution. P.O. Box 540, St. Clairsville, Ohio 43950, on the l lth day of July, 2008. 10