Thomas v. Tibbals

[Cite as Thomas v. Tibbals, 2012-Ohio-1904.]

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT GARY THOMAS : JUDGES:

: Hon. Patricia A. Delaney, P.J. Petitioner : Hon. Sheila G. Farmer, J.

: Hon. John W. Wise, J. -vs- :

: CASE NO. 11CA119 TERRY TIBBALS, WARDEN :

: : OPINION Respondent :

CHARACTER OF PROCEEDING: Writ of Habeas Corpus JUDGMENT: Dismissed DATE OF JUDGMENT ENTRY: April 20, 2012 APPEARANCES:

For Petitioner: For Respondent: Gary Thomas-A-601-988 No Appearance Mansfield Correctional Camp 1150 N. Main Street Mansfield, Ohio 44901 Delaney, P.J. {¶1} Petitioner, Gary Thomas, has filed an “Original Action in Habeas Corpus” as well as a Motion for Default Judgment. Petitioner alleges a writ of habeas corpus should be granted to release Petitioner from prison because Petitioner has not received proper jail time credit. {¶2} According to the petition, Petitioner was sentenced to a term of incarceration in Cuyahoga County Common Pleas Case Number CR 08-507478. The conviction in that case was overturned by the Eighth District Court of Appeals. Petitioner was subsequently indicted in Cuyahoga County Common Pleas Case Number CR 10-545714. It is Petitioner’s position he should be released because he should have been given jail time credit in Case Number 10- 545714 for the time served in Case Number 08-507478. {¶3} The Supreme Court has held habeas corpus does not lie to challenge jail time credit, “[Petitioner] had an adequate remedy by appeal to raise any error by the trial court in calculating his jail-time credit. State ex rel. Rudolph v. Horton, 119 Ohio St.3d 350, 2008-Ohio-4476, 894 N.E.2d 49, ¶ 3.” Hughley v. Saunders, 123 Ohio St.3d 446, 2009-Ohio-5585, 917 N.E.2d 270, ¶ I.

{¶4} Because habeas corpus does not lie to challenge the trial court’s failure to grant jail time credit, the petition is dismissed for failure to state a claim upon which relief may be granted.

By: Delaney, P.J.

Farmer, J. and Wise, J. concur

____________________________ HON. PATRICIA A. DELANEY ____________________________ HON. SHEILA G. FARMER ____________________________ HON. JOHN W. WISE

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

GARY THOMAS : CASE NO. 11CA119

:

Petitioner :

:

-vs- : JUDGMENT ENTRY

:

TERRY TIBBALS, WARDEN :

: :

Respondent :

For the reasons stated in our accompanying Memorandum-Opinion, this cause is dismissed.

Costs taxed to Petitioner.

______________________________ HON. PATRICIA A. DELANEY ______________________________ HON. SHEILA G. FARMER ______________________________ HON. JOHN W. WISE