[Cite as Norman v. Bracy, Warden, 2018-Ohio-2583.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

TRUMBULL COUNTY, OHIO 

MICHAEL NORMAN, : PER CURIAM OPINION 

 Petitioner, : 

 CASE NO. 2018-T-0031

 - vs - : 

CHARMAINE BRACY, WARDEN, : 

 Respondent. : 

Original Action for Writ of Habeas Corpus. 

Judgment: Petition dismissed. 

Michael Norman, pro se, PID: A322-028, Trumbull Correctional Institution, P.O. Box 640, 

5701 Burnett Road, Leavittsburg, OH 44430 (Petitioner). 

Mike DeWine, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th 

Floor, Columbus, OH 43215; and Maura O’Neill Jaite, Senior Assistant Attorney 

General, Criminal Justice Section, 150 East Gay Street, 16th Floor, Columbus, OH 

43215 (For Respondent). 

PER CURIAM. 

{¶1} This matter is before the court on the petition for a writ of habeas corpus 

filed by petitioner, Michael Norman, pro se, against respondent, Charmaine Bracy, 

Warden, Trumbull Correctional Institution, and her Civ.R. 12(B)(6) motion to dismiss 

and/or summary judgment motion. Petitioner has failed to file a brief in opposition to the 

warden’s dispositive motion. For the reasons that follow, the petition is dismissed. 
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{¶2} On April 19, 1996, petitioner, pursuant to a plea bargain, pled guilty in the 

Cuyahoga County Court of Common Pleas to murder, a first-degree felony, with a firearm 

specification. By the trial court’s journal entry, the court sentenced him to 15 to 25 years, 

“[t]he first three (3) years for firearm-gun specification.” The warden states that, pursuant 

to the sentencing entry, “the trial court sentenced Norman to a mandatory prior and 

consecutive 3 years in prison for the firearm specification and 15-25 years in prison for 

the Murder conviction, resulting in an aggregate 18-28 year prison sentence that does not 

expire until November 27, 2023.” Petitioner does not dispute that the court imposed a 

three-year consecutive sentence for his firearm specification in addition to his sentence 

for murder. 

{¶3} Petitioner did not appeal and thus did not challenge his conviction or his 

sentence. Instead, some 22 years later, on March 30, 2018, he filed the instant petition. 

He alleges the Bureau of Sentence Calculation incorrectly calculated his expected 

release date due to the Bureau’s alleged failure to give him good-time credit, pursuant to 

OAC 5120-2-03.2. He also alleges that, because he was sentenced before July 1, 1996, 

the sentence for the firearm specification should have run concurrently to the term 

imposed for murder. As a result, he alleges his release date should have been August 

28, 2013, and he seeks a court order to correct his release date. 

{¶4} As noted, the warden has filed a motion to dismiss/summary-judgment 

motion. A motion to dismiss for failure to state a claim on which relief can be granted is 

procedural in nature and tests the sufficiency of the complaint. State ex rel. Hanson v. 

Guernsey Cty. Bd. of Comm’rs., 65 Ohio St.3d 545, 548 (1992). “[W]hen a party files a 

motion to dismiss for failure to state a claim, all the factual allegations of the complaint 

must be taken as true and all reasonable inferences must be drawn in favor of the non-
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moving party.” Byrd v. Faber, 57 Ohio St.3d 56, 60 (1991). In resolving a Civ.R. 12(B)(6) 

motion, courts are confined to the allegations in the complaint and cannot consider 

outside materials. State ex rel. Baran v. Fuerst, 55 Ohio St.3d 94 (1990). However, 

“‘[m]aterial incorporated in a complaint may be considered part of the complaint for 

purposes of determining a Civ.R. 12(B)(6) motion to dismiss.’” Adlaka v. Giannini, 7th 

Dist. Mahoning No. 05 MA 105, 2006-Ohio-4611, ¶34, quoting State ex rel. Crabtree v. 

Franklin Cty. Bd. of Health, 77 Ohio St.3d 247, 249, fn. 1. (1997). In order for a court to 

grant a motion to dismiss for failure to state a claim, it must appear “‘beyond doubt that 

the plaintiff can prove no set of facts in support of his claim which would entitle him to 

relief.’” O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245 (1975), 

quoting Conley v. Gibson, 355 U.S. 41, 45 (1957). As long as there is a set of facts 

consistent with the plaintiff’s complaint, which would allow the plaintiff to recover, the court 

may not grant a defendant’s motion to dismiss. Cincinnati v. Beretta U.S.A. Corp., 95 

Ohio St.3d 416, 418 (2002). 

{¶5} Alternatively, the warden has moved for summary judgment. Pursuant to 

Civ.R. 56(C), summary judgment is proper if (1) no genuine issue as to any material fact 

remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and 

(3) it appears from the evidence that reasonable minds can come to but one conclusion, 

and viewing such evidence most strongly in favor of the party against whom the motion 

for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean 

United, Inc., 50 Ohio St.2d 317, 327 (1977). The party seeking summary judgment initially 

bears the burden of informing the trial court of the basis for the motion and identifying 

portions of the record demonstrating an absence of genuine issues of material fact. 

Dresher v. Burt, 75 Ohio St.3d 280, 293. If the moving party fails to satisfy its initial 
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burden, the motion for summary judgment must be denied. Id. If this burden is satisfied, 

the nonmoving party has the burden, as set forth in Civ.R. 56(E), to offer specific facts 

showing a genuine issue for trial. Dresher, supra.

{¶6} “Where a party has filed a motion for summary judgment, pursuant to Civ.R. 

56, but has not supported the motion with evidence outside the pleadings, the motion is, 

in effect, a request for dismissal pursuant to Civ.R. 12(B)(6) for failure to state a claim for 

relief.” State ex rel. Watkins v. Teater, 11 Ohio App.3d 103 (9th Dist.1983), paragraph 

two of the syllabus. Accord Bright v. Columbus, 10th Dist. Franklin No. 92AP-289, 1992 

WL 213822, *3 (Sep. 3, 1992). Since the warden did not support her motion with evidence 

outside the pleadings, her motion, in effect, is a motion to dismiss under Civ.R. 12(B)(6), 

and shall be treated as such. 

{¶7} “In general, habeas corpus is proper in the criminal context only if the 

petitioner is entitled to immediate release from prison or some other physical 

confinement.” Scanlon v. Brunsman, 112 Ohio St.3d 151, 2006-Ohio-6522, ¶4. The writ 

is “available only when the petitioner’s maximum sentence has expired and he is being 

held unlawfully.” Heddleston v. Mack, 84 Ohio St.3d 213, 214 (1998). “The availability of 

an adequate remedy at law * * * precludes a writ of habeas corpus.” State ex rel. Gibson 

v. Sloan, 147 Ohio St.3d 240, 2016-Ohio-3422, ¶7. In habeas cases, “[t]he burden of 

proof is on the petitioner to establish his right to release.” Chari v. Vore, 91 Ohio St.3d 

323, 325 (2001). 

{¶8} Petitioner alleges he is entitled to an earlier release date than his scheduled 

release date due to his entitlement to good-time credit. However, an inmate’s claim that 

he is entitled to an earlier release date does not equate to a claim that he is entitled to 

immediate release from prison. See Scanlon, supra. Thus, when an inmate claims he is 
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entitled to an earlier release date, but does not claim he is entitled to immediate release, 

he does not state a viable habeas-corpus claim. Id. 

{¶9} Good-time credit reduces an inmate’s minimum or definite sentence, not his 

maximum sentence. Gavrilla v. Leonard, 4th Dist. Ross No. 01CA2638, 2002-Ohio-6144, 

¶11. Further, good-time credit does not entitle an inmate to release from prison before 

he serves the maximum term of his sentence. Id.; State ex rel. Johnson v. Ohio Dept. of 

Rehab. & Corr., 95 Ohio St.3d 70, 71 (2002). The rationale for reducing the inmate’s 

minimum, rather than his maximum, sentence was to allow earlier consideration for 

parole, not to allow inmates to unilaterally shorten their court-imposed sentence. Gavrilla

at ¶12. 

{¶10} In Johnson, supra, the petitioner alleged that his correct release date was 

earlier than the maximum expiration date of his sentence due to good-time credit. The 

Court held that such claim was broad enough to encompass a correction of the inmate’s 

release date, but would not entitle him to habeas relief because the purpose of that writ 

is to obtain immediate release from prison. Id. Rather, the court held that the appropriate 

remedy to seek correction of the inmate’s release date is mandamus. Id. 

{¶11} Here, even if petitioner was entitled to good-time credit, such credit would 

only reduce the minimum term of his sentence, not the maximum term, and thus goodtime credit would not entitle him to immediate release from prison or to habeas relief. 

{¶12} In addition, petitioner alleges that because he was sentenced prior to 1996, 

the sentence for his firearm specification should have run concurrently, rather than 

consecutively, pursuant to “the old law, and statutes cited.” However, petitioner fails to 

cite any statutes or case law providing that, prior to 1996, the three-year sentence for a 

firearm specification was to be served concurrently to the underlying offense. In fact, our 
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review of the case law leads to the opposite conclusion. Under the former firearm 

specification statute (R.C. 2929.71), in effect until July 1, 1996, the three-year sentence 

for a firearm specification was required to be served consecutively to the sentence 

imposed on the underlying offense. Morgan v. Ohio Adult Parole Authority, 68 Ohio St.3d 

344, 347 (1994); State v. Hudson, 7th Dist. Jefferson No. 94-J-10, 1994 WL 715648, *3 

(Dec. 20, 1994); State v. Russell, 4th Dist. Athens No. 97 CA 37, 1998 WL 357546, *33 

(June 30, 1998). 

{¶13} Thus, contrary to petitioner’s argument, the trial court was required to 

impose the three-year term for his conviction of the firearm specification consecutively. 

{¶14} Assuming the allegations in the petition to be true and construing them in 

petitioner’s favor, as we are required to do, his complaint does not allege facts showing 

that his maximum prison sentence has expired or that he is entitled to immediate release 

from prison. Rather, he is merely seeking a court order to allegedly correct his release 

date, for which a proper and adequate remedy is a writ of mandamus. Thus, as a matter 

of law, petitioner’s habeas-corpus claim is not legally cognizable; the petition fails to state 

a claim on which relief can be granted; Warden Bracy’s Civ.R. 12(B)(6) motion to dismiss 

is granted; and the petition is dismissed with prejudice. 

DIANE V. GRENDELL, J., CYNTHIA WESTCOTT RICE, J., TIMOTHY P. CANNON, J., 

concur.