[This decision has been published in Ohio Official Reports at
92 Ohio St.3d 87.]
THE STATE EX REL. BRAGG, APPELLANT, v. SEIDNER, WARDEN, APPELLEE.
[Cite as State ex rel. Bragg v. Seidner, 2001-Ohio-152.]
Habeas corpus sought to compel relator’s release from prison—Court of appeals’
denial of writ affirmed, when.
(No. 01-217—Submitted May 30, 2001—Decided June 20, 2001.)
APPEAL from the Court of Appeals for Lorain County, No. 95CA006239.
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Per Curiam.
{¶ 1} In 1989, appellant, John T. Bragg, was convicted of two counts of
aggravated murder, kidnapping, aggravated robbery, and various specifications,
and was sentenced to prison. On appeal, the court of appeals affirmed Bragg’s
convictions and sentence. State v. Bragg (June 27, 1991), Cuyahoga App. No.
58859, unreported, 1991 WL 127135.
{¶ 2} In September 1995, Bragg filed a petition for a writ of habeas corpus
to compel his prison warden at the time, appellee Larry Seidner, to release him from
custody. Bragg claimed that his trial court lacked jurisdiction to try and sentence
him when his indictment had been improperly amended to delete a death-penalty
specification. Seidner filed a motion to dismiss. The court of appeals converted
the motion to a motion for summary judgment, notified Bragg of the conversion,
and gave him the opportunity to respond.
{¶ 3} In February 1996, Bragg filed a motion to amend his petition, in which
he added a claim that the indictment was invalid because it contained no allegation
that the offense was committed in some place within the territorial jurisdiction of
the court. In March 1996, the court of appeals granted summary judgment for
Seidner and denied the writ. The court of appeals also denied Bragg’s motion to
amend.
SUPREME COURT OF OHIO
{¶ 4} Shortly thereafter, Bragg filed a Civ.R. 60(B) motion for relief from
the judgment in which he asserted the same claims in his petition and motion to
amend his petition. Bragg also requested an evidentiary hearing on his motion.
Over four years later, in December 2000, the court of appeals, after discovering that
Bragg’s motion was still pending due to an administrative oversight, denied the
motion.
{¶ 5} In his appeal as of right, Bragg contends that the court of appeals erred
in denying the motion.
{¶ 6} Bragg’s contention is meritless. “A Civ.R. 60(B) motion for relief
from judgment cannot be used as a substitute for a timely appeal ….” Key v.
Mitchell (1998), 81 Ohio St.3d 89, 90-91,
689 N.E.2d 548, 549. All of Bragg’s
claims could have been raised in an appeal from the judgment denying the writ and
the motion to amend.
{¶ 7} Furthermore, habeas corpus is not available to test the validity or
sufficiency of an indictment or an amended indictment. State ex rel. Raglin v.
Brigano (1998), 82 Ohio St.3d 410,
696 N.E.2d 585; Douglas v. Money (1999),
85
Ohio St.3d 348, 349,
708 N.E.2d 697, 698.
{¶ 8} Finally, the indictments attached to Bragg’s habeas corpus petition in
this case specified that the offenses occurred in Cuyahoga County, i.e., Bragg’s trial
court had territorial jurisdiction in his case.
{¶ 9} Based on the foregoing, Bragg’s Civ.R. 60(B) motion for relief from
judgment did not allege operative facts to warrant relief from judgment, and the
court of appeals did not abuse its broad discretion in denying his motion without
holding an evidentiary hearing. See State ex rel. Richard v. Seidner (1996), 76
Ohio St.3d 149, 152,
666 N.E.2d 1134, 1137. Accordingly, we affirm the judgment
of the court of appeals.
Judgment affirmed.
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January Term, 2001
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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John T. Bragg, pro se.
Betty D. Montgomery, Attorney General, Ellen H. Weston and Michael L.
Collyer, Assistant Attorneys General, for appellee.
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