[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

DeVore v. Black, Slip Opinion No. 2021-Ohio-3153.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2021-OHIO-3153

DEVORE, APPELLANT, v. BLACK, WARDEN, APPELLEE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as DeVore v. Black, Slip Opinion No. 2021-Ohio-3153.] 

Habeas Corpus—Inmate’s claim that he was convicted of an uncharged offense 

was an attack on the sufficiency of the indictment that is not cognizable in 

habeas corpus—Court of appeals’ judgment dismissing complaint affirmed.

(No. 2021-0199—Submitted May 11, 2021—Decided September 15, 2021.) 

APPEAL from the Court of Appeals for Richland County, No. 2020 CA 0074, 

2021-Ohio-198. 

__________________ 

Per Curiam. 

{¶ 1} Appellant, Adam M. DeVore, is incarcerated in the Richland 

Correctional Institution, where appellee, Kenneth Black, is the warden. DeVore 

appeals the Fifth District Court of Appeals’ judgment dismissing his habeas corpus 

complaint against Black for failure to comply with R.C. 2969.25(A) and failure to 

state a cognizable claim for relief in habeas corpus. We affirm. 
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I. Background 

{¶ 2} In February 2018, DeVore was convicted in the Ashland County 

Common Pleas Court of abduction and domestic violence and sentenced to 

consecutive 36-month prison terms. The Fifth District affirmed his convictions. 

See State v. DeVore, 5th Dist. Ashland No. 18-COA-011, 2018-Ohio-4189, ¶ 108. 

{¶ 3} Following the affirmance of his convictions, DeVore filed an 

application to reopen his appeal under App.R. 26(B). One of DeVore’s proposed 

assignments of error in the application was that abduction and domestic violence 

are allied offenses of similar import and, therefore, he should not have been 

sentenced for both. See R.C. 2941.25(A). The court of appeals denied DeVore’s 

application, determining that DeVore “committed separate and distinct crimes and 

the offenses were separated by time and occurred in different locations.” The court 

of appeals therefore held that DeVore’s appellate counsel was not ineffective for 

failing to raise an allied-offenses argument. See R.C. 2941.25(B) (a defendant may 

be convicted of offenses of the same or similar kind if they were committed 

“separately or with a separate animus as to each”). 

{¶ 4} On November 30, 2020, DeVore filed a complaint for a writ of habeas 

corpus in the Fifth District, requesting his immediate release from prison. Citing 

the “separated by time and occurred in different locations” language included in the 

court of appeals’ judgment denying his App.R. 26(B) application for reopening, 

DeVore alleged that his conviction for domestic violence was necessarily for 

conduct that occurred at a time and place different from that alleged in the 

indictment for the offense. DeVore accordingly argued that his domestic-violence 

conviction was void and that he is entitled to immediate release because he had 

already served the full 36-month prison term relating to his abduction conviction. 

{¶ 5} Black filed a motion to dismiss DeVore’s complaint under Civ.R.

12(B)(6). The court of appeals granted Black’s motion and dismissed the 

complaint. 2021-Ohio-198, ¶ 12. The court of appeals held that DeVore had failed 
January Term, 2021 

 3

to comply with R.C. 2969.25(A) and also that his complaint failed to state a 

cognizable claim for relief in habeas corpus. Id. at ¶ 4-6, 8-10. 

{¶ 6} DeVore timely appealed to this court as of right. 

II. Analysis 

{¶ 7} This court reviews the dismissal of a habeas corpus complaint under 

Civ.R. 12(B)(6) de novo. State ex rel. Norris v. Wainwright, 158 Ohio St.3d 20, 

2019-Ohio-4138, 139 N.E.3d 867, ¶ 5. Generally, a writ of habeas corpus is 

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

held unlawfully, Leyman v. Bradshaw, 146 Ohio St.3d 522, 2016-Ohio-1093, 59 

N.E.3d 1236, ¶ 8, or when the sentencing court patently and unambiguously lacked 

subject-matter jurisdiction, Stever v. Wainwright, 160 Ohio St.3d 139, 2020-Ohio1452, 154 N.E.3d 55, ¶ 8. For alleged nonjurisdictional errors, habeas corpus is not 

available when the petitioner has or had an adequate remedy in the ordinary course 

of the law. Kneuss v. Sloan, 146 Ohio St.3d 248, 2016-Ohio-3310, 54 N.E.3d 1242, 

¶ 6. 

{¶ 8} The court of appeals was correct to dismiss DeVore’s habeas 

complaint because it failed to state a valid claim for relief. DeVore was convicted 

of abduction and domestic violence, which were both alleged to have occurred 

between January 7 and 9, 2017. In his App.R. 26(B) application, DeVore argued 

that his appellate counsel rendered ineffective assistance by not arguing that those 

two convictions should have been merged for sentencing purposes. In its judgment 

denying DeVore’s App.R. 26(B) application, the court of appeals referred to 

evidence of a domestic-violence incident that, DeVore contends, was not the 

domestic-violence incident charged in the indictment. DeVore therefore claims 

that he was convicted of an uncharged offense and is consequently entitled to relief 

in habeas corpus. 

{¶ 9} The court of appeals properly rejected this argument. DeVore’s

theory that he was convicted of an uncharged offense does not present a 
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jurisdictional defect that may be challenged in an extraordinary action. See Gunnell 

v. Lazaroff, 90 Ohio St.3d 76, 734 N.E.2d 829 (2000). Such an argument is an 

attack upon the sufficiency of the indictment, which is not cognizable in habeas 

corpus. Id. at 76-77. Moreover, to the extent that there was any potential trial error 

or sentencing error regarding DeVore’s domestic-violence conviction, DeVore had 

an adequate remedy to address it by way of appeal.

{¶ 10} For the foregoing reasons, the court of appeals properly dismissed 

DeVore’s habeas corpus complaint. 

Judgment affirmed. 

O’CONNOR, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, and 

BRUNNER, JJ., concur. 

KENNEDY, J., concurs in judgment only, with an opinion. 

_________________ 

 KENNEDY, J., concurring in judgment only.

{¶ 11} Because an application to reopen a direct appeal under App.R. 26(B) 

is not a civil action, the Fifth District Court of Appeals erred in dismissing appellant 

Adam M. DeVore’s habeas corpus complaint for failure to comply with R.C. 

2969.25(A). See 2021-Ohio-198, ¶ 6, 12. R.C. 2969.25(A), which requires an 

inmate to file an affidavit of prior civil actions when commencing a civil action 

against the state, did not require DeVore to list in the affidavit a prior appeal of the 

denial of his application to reopen. Contrary to the majority’s position today, 

whether an inmate has complied with R.C. 2969.25 is a threshold question that the 

court must answer before considering the merits of the inmate’s claim, and I would 

not let the court of appeals’ error go uncorrected. Nonetheless, DeVore failed to 

state a claim for relief that is cognizable in habeas corpus, and I therefore concur in 

the majority’s judgment affirming the dismissal of his complaint. 

{¶ 12} R.C. 2969.25(A) requires an inmate who “commences a civil action 

or appeal against a government entity or employee” to “file with the court an 
January Term, 2021 

 5

affidavit that contains a description of each civil action or appeal of a civil action 

that the inmate has filed in the previous five years in any state or federal court.” 

R.C. 2969.21(B)(1)(a) defines the phrase “civil action or appeal against a 

government entity or employee” to include a “civil action that an inmate 

commences against the state, a political subdivision, or an employee of the state or 

a political subdivision in a court of common pleas, court of appeals, county court, 

or municipal court.” The General Assembly expressly excluded actions and 

appeals filed in this court from the definition of “civil action or appeal against a 

government entity or employee.” R.C. 2969.21(B)(2). 

{¶ 13} The dismissal of an action for failure to state a claim upon which 

relief can be granted is a ruling on the merits of the case. State ex rel. Arcadia 

Acres v. Ohio Dept. of Job & Family Servs., 123 Ohio St.3d 54, 2009-Ohio-4176, 

914 N.E.2d 170, ¶ 15. In contrast, a court’s review of an inmate’s affidavit of prior 

civil actions does not involve the merits of the action but only whether the inmate 

has complied with “the mandatory filing requirements of R.C. 2969.25,” State v. 

Henton, 146 Ohio St.3d 9, 2016-Ohio-1518, 50 N.E.3d 553, ¶ 5. When an inmate 

has not satisfied those filing requirements, “the merits of any underlying claims 

* * * are not properly before [the] court,” Rogers v. Eppinger, 154 Ohio St.3d 189, 

2018-Ohio-4058, 112 N.E.3d 902, ¶ 11, and the “ ‘failure to comply with [R.C. 

2969.25] requires dismissal of [the] inmate’s complaint,’ ” id. at ¶ 9, quoting State 

ex rel. Hall v. Mohr, 140 Ohio St.3d 297, 2014-Ohio-3735, 17 N.E.3d 581, ¶ 4. 

{¶ 14} Whether an inmate has complied with R.C. 2969.25, then, is a 

threshold question that may not be sidestepped to reach the merits of the case. Nor 

may it be simply ignored, as the majority does today. For this reason, this court 

should review the court of appeals’ determination that DeVore’s affidavit of prior 

actions is insufficient. 

{¶ 15} In this case, the court of appeals looked at this court’s docket and 

discovered that DeVore had previously appealed to this court the denial of his 
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App.R. 26(B) application to reopen his direct appeal. The appellate court noted our 

caselaw holding that an application to reopen a direct appeal is civil in nature, and 

it determined that the dismissal of DeVore’s habeas complaint was justified because 

“[the] appeal to the Ohio Supreme Court should have also been included in Mr. 

DeVore’s Affidavit of Prior Action.” 2021-Ohio-198 at ¶ 6. In the alternative, the 

court concluded that the dismissal of the complaint was appropriate also because 

DeVore had failed to state a claim cognizable in habeas corpus. Id. at ¶ 10, 12. 

{¶ 16} In concluding that an application to reopen filed in an appellate court 

is a civil action, the Fifth District reasoned that because an application to reopen 

affords a civil remedy, it is a “civil action” for the purposes of R.C. 2969.25(A)’s 

affidavit requirement. Id. at ¶ 5-6. The court of appeals assumed that if a matter, 

remedy, or proceeding is civil in nature, then it must be a “civil action.” This hasty 

generalization—that all proceedings that are civil in nature are civil actions—

caused the court of appeals to jump to the conclusion that a person filing an App.R. 

26(B) application to reopen commences a civil action for purposes of R.C. 

2969.25(A), without ever considering what the term “civil action” actually means. 

{¶ 17} This court, however, has long distinguished between civil actions 

and other civil proceedings. As we wrote in In re Wyckoff’s Estate: 

We think it can accurately be said that the term, “civil 

action,” as used in our statutes embraces those actions which, prior 

to the adoption of the Code of Civil Procedure in 1853 abolishing 

the distinction between actions at law and suits in equity, were 

denoted as actions at law or suits in equity; and that other court 

proceedings of a civil nature come, generally at least, within the 

classification of special proceedings. 

166 Ohio St. 354, 357, 142 N.E.2d 660 (1957). 
January Term, 2021 

 7

{¶ 18} We have adhered to that understanding in more recent decisions. 

E.g., Polikoff v. Adam, 67 Ohio St.3d 100, 107, 616 N.E.2d 213 (1993) (“we ask 

first whether shareholder derivative suits were recognized in equity, at common 

law, or established by special legislation” in determining whether they are civil 

actions or special proceedings); Stevens v. Ackman, 91 Ohio St.3d 182, 186-189, 

743 N.E.2d 901 (2001) (following Wyckoff’s Estate and Polikoff). Ohio’s statutory 

law also recognizes this distinction between “actions” and special proceedings (and 

provisional remedies). See R.C. 2505.02(A) and (B). 

{¶ 19} An “action,” we have said, is a court proceeding “ ‘ “by which a 

party prosecutes another for the enforcement or protection of a right, the redress or 

prevention of a wrong, or the punishment of a public offense, involving process and 

pleadings, and ending in a judgment.” ’ ” Stevens at 187, quoting Polikoff at 104, 

quoting Missionary Soc. of Methodist Episcopal Church v. Ely, 56 Ohio St. 405, 

407, 47 N.E. 537 (1897). The General Assembly rephrased and codified our 

definition of “action” in section 11237 of the General Code, and the definition is 

retained in R.C. 2307.01: “An action is an ordinary proceeding in a court of justice, 

involving process, pleadings, and ending in a judgment or decree, by which a party 

prosecutes another for the redress of a legal wrong, enforcement of a legal right, or 

the punishment of a public offense.” 

{¶ 20} An App.R. 26(B) application for reopening is not a “civil action,” as 

we have traditionally understood that term. Its remedy did not exist at common law 

or in equity. Rather, the remedy was established by this court in 1992 in State v. 

Murnahan, when we held that a claim of ineffective assistance of appellate counsel 

may be asserted by filing a timely or delayed application for reconsideration in the 

court of appeals (under the Rules of Appellate Procedure) and by filing a direct or 

delayed appeal in this court (under our Rules of Practice). 63 Ohio St.3d 60, 584 

N.E.2d 1204 (1992), paragraphs two and three of the syllabus. App.R. 26(B) was 

adopted the following year in response to Murnahan to provide for an application 
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to reopen a direct appeal. See State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, 

894 N.E.2d 1221, ¶ 13 (“App.R. 26(B) emanates directly from Murnahan”). The 

rulemaking powers conferred on this court by the Ohio Constitution, however, do 

not extend to creating new forms of civil actions. Article IV, Section 5(B), Ohio 

Constitution (“The supreme court shall prescribe rules governing practice and 

procedure in all courts of the state, which rules shall not abridge, enlarge, or modify 

any substantive right”); see also Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 

Ohio St.3d 171, 178, 707 N.E.2d 853 (1999) (“violation of the Disciplinary Rules 

does not, in itself, create a private cause of action”). 

{¶ 21} Nor does an App.R. 26(B) proceeding fit within the common-law 

and statutory definition of “action.” It does not involve the service of a summons 

and the filing of pleadings; rather, it provides for the submission of only the 

application to reopen and a memorandum in opposition. See App.R. 26(B)(4). And 

“application” is another word for a motion, and it is not synonymous with the word 

“pleading.” See Civ.R. 7(A) and (B) (distinguishing between a pleading and a 

motion, the latter of which is an “application to the court”); Black’s Law 

Dictionary 124 (11th Ed.2019) (defining the word “application” as “motion”). The 

applicant does not “prosecute” another party in seeking to reopen the appeal. . 

{¶ 22} Further, a decision on the application does not result in a civil 

judgment, because the appellate court initially enters only an order granting or 

denying reopening. See App.R. 26(B)(6). And after an App.R. 26(B) application 

is granted, “the case shall proceed as on an initial appeal in accordance with [the 

Rules of Appellate Procedure].” App.R. 26(B)(7). If the applicant later establishes 

that he or she received ineffective assistance of appellate counsel, then the appellate 

court is required to “vacate its prior judgment and enter the appropriate judgment,” 

App.R. 26(B)(9), which might include the reversal of the judgment of conviction. 

Because the case proceeds as an appellate proceeding that has the ultimate result of 

the appellate court’s reviewing a trial-court judgment, it is not a civil action within 
January Term, 2021 

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the meaning of R.C. 2969.25(A)—the statute itself expressly distinguishes between 

a “civil action” and an “appeal of a civil action.” 

{¶ 23} The majority ignores the court of appeals’ error and leaves standing 

its conclusion that an application to reopen is a civil action. This error will not be 

easily cabined and has consequences not intended by the General Assembly. The 

affidavit requirement of R.C. 2969.25(A) applies to “[a] civil action that an inmate 

commences against the state * * *.” R.C. 2969.21(B)(1)(a). The state of Ohio is 

the adversarial party in an App.R. 26(B) proceeding. See App.R. 26(B)(3) 

(requiring the clerk of the court of appeals to serve a copy of the application for 

reopening on the attorney for the prosecution); State v. Heinz, 146 Ohio St.3d 374, 

2016-Ohio-2814, 56 N.E.3d 965, ¶ 23 (“The General Assembly has implemented 

an adversarial system of criminal justice in which the parties to a case contest the 

issues before a court of law, and it has vested county prosecuting attorneys with the 

authority to represent the state in those proceedings”). An App.R. 26(B) application 

to reopen, then, following the court of appeals’ reasoning, would be a civil action 

against the state subjecting an inmate to the requirements of R.C. 2969.25. 

{¶ 24} Not only does that mean that an inmate would be required to list an 

application for reopening in the affidavit mandated by R.C. 2969.25(A) when 

commencing a civil action against the state or a political subdivision, but also, the 

logical consequence of the court of appeals’ holding is that an inmate must also 

submit an affidavit of prior civil actions at the time that he or she files an application 

for reopening in the court of appeals. That requirement is not included in App.R. 

26(B), and I am not aware of any appellate court that treats applications to reopen 

as civil actions subject to the affidavit requirement of R.C. 2969.25(A). Yet, 

“[c]ompliance with R.C. 2969.25(A) is mandatory, and failure to comply will 

warrant dismissal.” Henton, 146 Ohio St.3d 9, 2016-Ohio-1518, 50 N.E.3d 553, at 

¶ 3. Therefore, in the Fifth District, at least, an application to reopen lacking a 

compliant affidavit may be summarily denied without any court considering the 
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merits of the inmate’s claim of ineffective assistance of appellate counsel. That 

result is contrary to “our recognition of effective appellate counsel as a 

constitutional right guaranteed to all defendants.” Davis, 119 Ohio St.3d 422, 

2008-Ohio-4608, 894 N.E.2d 1221, at ¶ 27. 

{¶ 25} The fallout from leaving the court of appeals’ erroneous holding in 

place as good law is not limited to inmates seeking to vindicate their rights to the 

effective assistance of appellate counsel. The court’s reasoning applies equally to 

other proceedings that are civil in nature in which the state or a political subdivision 

is the party opposing an inmate. For example, we have recognized that a 

postconviction-relief proceeding is a civil, collateral attack on a judgment of 

conviction, State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, 

¶ 49, and we have said that the App.R. 26(B) procedure “bears a strong 

resemblance” to the process for postconviction relief, Morgan v. Eads, 104 Ohio 

St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 12. In fact, using reasoning similar 

to the Fifth District’s in this case, the Tenth District Court of Appeals has held that 

an inmate’s “omission of his appeals of the judgments denying his postconviction 

motions subjected his action to dismissal.” State ex rel. McGlown v. Mohr, 10th 

Dist. Franklin No. 14AP-478, 2015-Ohio-1554, ¶ 9. And it will not require much 

imagination for a prosecutor to seek the dismissal of a petition for postconviction 

relief on the basis that the inmate who filed it failed to also file an affidavit listing 

his or her prior civil actions. . 

{¶ 26} “Our rulings should not promote such a “ ‘ “gotcha” principle of 

law.’ ” State v. Craig, 159 Ohio St.3d 398, 2020-Ohio-455, 151 N.E.3d 574, ¶ 51 

(Kennedy, J., concurring in judgment only), quoting People v. Whipple, 97 N.Y.2d 

1, 7, 734 N.Y.S.2d 549, 760 N.E.2d 337 (2001). The term “civil action” should be 

accorded its established meaning, and that meaning is not synonymous with any 

proceeding that happens to be civil in nature. Because an application for reopening 

filed pursuant to App.R. 26(B) is not a civil action within the meaning of 
January Term, 2021 

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R.C. 2969.25(A), I would reject the court of appeals’ erroneous holding that 

DeVore’s habeas corpus complaint was subject to dismissal because he failed to 

include his App.R. 26(B) application in his affidavit of prior civil actions. 

{¶ 27} Nonetheless, I agree with the majority that DeVore has failed to state 

a claim that is cognizable in habeas corpus. However, because the majority’s 

decision today leaves the court of appeals’ erroneous holding in place, I concur only 

in the majority’s judgment affirming the Fifth District’s judgment dismissing the 

complaint. 

_________________ 

 Adam M. DeVore, pro se. 

 Dave Yost, Attorney General, and William H. Lamb, Assistant Attorney 

General, for appellee. 

_________________