2002 OHIO 4908 - Malone v. Lane

[This decision has been published in Ohio Official Reports at

96 Ohio St.3d 415

.]




               MALONE, APPELLANT, v. LANE, WARDEN, APPELLEE.
                     [Cite as Malone v. Lane,

2002-Ohio-4908

.]
Habeas corpus sought to compel relator’s immediate release from prison—Court
        of appeals’ dismissal of petition affirmed, when.
    (No. 2002-0538—Submitted August 27, 2002—Decided October 2, 2002.)
        APPEAL from the Court of Appeals for Marion County, No. 9-02-07.
                                  __________________
        Per Curiam.
        {¶1} In January 2002, appellant, Curtis Malone, submitted a filing entitled
“Petitioner-Appellant’s Brief” and “Habeas Corpus Appeal” in the Court of
Appeals for Marion County. In his brief, Malone requested a writ of habeas corpus
to compel his immediate release from prison. Malone claimed that he was entitled
to the writ because there was no endorsement that his indictment was a true bill and
the grand jury did not certify the indictment. Malone further claimed that he had
been denied his Miranda rights. Malone’s brief was not verified.
        {¶2} In February 2002, the court of appeals dismissed the cause.
        {¶3} In his appeal as of right, Malone asserts that the court of appeals erred
in dismissing his habeas corpus action. For the reasons that follow, we hold that
Malone’s claims lack merit.
        {¶4} First, Malone’s claims are not cognizable in habeas corpus, and he had
adequate legal remedies in the ordinary course of law to raise these claims. Howard
v. Randle (2002),

95 Ohio St.3d 281, 282

767 N.E.2d 268

 (validity or sufficiency
of indictment); State v. Dunlap (July 25, 1997), 11th Dist. No. 97-L-115,

1997 WL 469781

 (denial of Miranda rights).
        {¶5} Second, a habeas corpus action must be commenced by filing a
petition rather than an appellate brief. R.C. 2725.04 (“Application for the writ of
                              SUPREME COURT OF OHIO




habeas corpus shall be by petition …”); cf. State ex rel. Graves v. Ney (1999),

87 Ohio St.3d 234

718 N.E.2d 1289

.
        {¶6} Third, even assuming that Malone’s filing could be treated as a habeas
corpus petition, it was fatally defective because he failed to verify it, as required by
R.C. 2725.04. Chari v. Vore (2001),

91 Ohio St.3d 323, 328

744 N.E.2d 763

.
        {¶7} Based on the foregoing, we affirm the judgment of the court of
appeals.
                                                                   Judgment affirmed.
        MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                                 __________________
        Curtis Malone, pro se.
        Betty D. Montgomery, Attorney General, and Ted Kiser, Assistant Attorney
General, for appellee.
                                 __________________




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