[Cite as McKinney v. Tibbals, 2014-Ohio-592.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

JERMAINE MCKINNEY : JUDGES: 

 : Hon. William B. Hoffman, P.J. 

Petitioner : Hon. Sheila G. Farmer, J. 

 : Hon. John W. Wise, J 

-vs- : 

 : 

TERRY TIBBALS, WARDEN : Case No. 13 CA 65 

 : 

Respondent : O P I N I O N 

CHARACTER OF PROCEEDING: Habeas Corpus 

JUDGMENT: Dismissed 

DATE OF JUDGMENT: February 13, 2014 

APPEARANCES: 

For Petitioner For Respondent 

JERMAINE MCKINNEY, Pro Se JERRI L. FOSNAUGHT 

#A520-677 Assistant Attorney General 

1150 N. Main Street 150 East Gay Street, 16th Floor 

Mansfield, OH 44901 Columbus, OH 43215 
Richland County, Case No. 13 CA 65 2 

Farmer, J.

{¶1} Petitioner, Jermaine McKinney, has filed a Petition for Writ of Habeas 

Corpus arguing he is entitled to immediate release from prison because he and his 

attorney were denied access to the jury verdict forms filed in his case. Respondent has 

filed a motion to dismiss based on the procedural defect which exists due to Petitioner’s 

failure to attach a copy of all of his commitment papers. Further, Respondent argues 

the petition should be dismissed because Petitioner has failed to state a claim upon 

which relief may be granted. In response to the motion to dismiss, Petitioner suggests 

he has attached copies of all commitment papers for those convictions he has not yet 

served. In other words, Petitioner maintains he has already served one of his 

sentences which was imposed by the Mahoning County Court of Common Pleas, 

therefore, he was not required to attach those commitment papers. 

{¶2} Even assuming Petitioner is correct in his contention that he has attached 

all necessary commitment papers, we find the petition fails to state a claim upon which 

relief may be granted. 

{¶3} “Dismissal under Civ.R. 12(B)(6) for failure to state a claim upon which 

relief can be granted is appropriate if, after all factual allegations are presumed true and 

all reasonable inferences are made in Keith's favor, it appears beyond doubt that he 

could prove no set of facts entitling him to the requested extraordinary relief in habeas 

corpus. State ex rel. Turner v. Houk, 112 Ohio St.3d 561, 2007-Ohio-814, 862 N.E.2d 

104, ¶ 5.” Keith v. Bobby, 2008-Ohio-1443, 117 Ohio St. 3d 470, 472, 884 N.E.2d 1067, 

1069 (2008). 
Richland County, Case No. 13 CA 65 3 

{¶4} 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. Crase v. Bradshaw, 108 Ohio St.3d 212, 2006-Ohio-663, 842 N.E.2d 513, 

¶ 5; State ex rel. Smirnoff v. Greene (1998), 84 Ohio St.3d 165, 167, 702 N.E.2d 423. 

{¶5} Petitioner’s sole contention is that he was deprived of the right to appeal 

issues related to the jury verdict forms because both the trial court and the court of 

appeals denied his counsel the opportunity to review those forms. In short, he argues 

the denial of appellate review of the jury verdict forms entitles him to the issuance of a 

writ of habeas corpus. Petitioner contends the jury verdict forms are void because they 

do not contain every element of the offenses for which he was convicted. 

{¶6} The Supreme Court has held, “[H]abeas corpus is not available to raise 

claims of improper jury instructions or verdict forms. See, e.g., State ex rel. Richard v. 

Seidner (1996), 76 Ohio St.3d 149, 152, 666 N.E.2d 1134, 1136-1137.” Smith v. 

Seidner, 1997-Ohio-224, 78 Ohio St. 3d 172, 173, 677 N.E.2d 336 (1997). 

{¶7} Further, Petitioner has or had an adequate remedy at law by way of filing 

an application to reopen his appeal pursuant to App.R. 26. The existence of an 

adequate remedy at law precludes the issuance of a writ of habeas corpus. “Like other 

extraordinary-writ actions, habeas corpus is not available when there is an adequate 

remedy in the ordinary course of law.” In re Complaint for Writ of Habeas Corpus for 

Goeller, 103 Ohio St.3d 427, 2004-Ohio-5579, 816 N.E.2d 594, ¶ 6. 
Richland County, Case No. 13 CA 65 4 

{¶8} For these reasons, the motion to dismiss is granted. The request for writ 

of habeas corpus is denied. 

 

By Farmer, J. 

Hoffman, P.J. and 

Wise, J. concur. 

 

 

 

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