[Cite as State ex rel. Johnson v. Foley, 2022-Ohio-36.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF LORAIN ) 

STATE EX REL. MARVIN F. 

JOHNSON, SR. 

 Petitioner 

 v. 

KEITH J. FOLEY, WARDEN 

 Respondent 

C.A. No. 21CA011789 

ORIGINAL ACTION IN 

HABEAS CORPUS 

Dated: January 10, 2022 

 

 PER CURIAM. 

{¶1} Petitioner, Marvin F. Johnson, has petitioned this Court for a writ of habeas 

corpus to compel Respondent, Warden Foley, to release him from custody. Warden Foley 

has moved to dismiss or for summary judgment and Mr. Johnson has responded. For the 

following reasons, this Court grants the motion to dismiss. 

{¶2} When this Court reviews a motion to dismiss under Civ.R. 12(B)(6), we 

must presume that all of the factual allegations in the petition are true and make all 

reasonable inferences in favor of the nonmoving party. State ex rel. Seikbert v. Wilkinson, 

69 Ohio St.3d 489, 490 (1994). A petition can only be dismissed when, having viewed 

the complaint in this way, it appears beyond doubt that the relator can prove no set of 

facts that would entitle him to the relief requested. Goudlock v. Voorhies, 119 Ohio St.3d 
C.A. No. 21CA011789 

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389, 2008-Ohio-4787, ¶ 7. With this standard in mind, we begin with the facts alleged in 

the petition. 

{¶3} According to Mr. Johnson’s petition, and the attachments to the petition, he 

entered a no contest plea to several offenses. As is relevant to this case, the trial court 

sentenced Mr. Johnson to six years in prison on count one. Mr. Johnson was also 

scheduled for medical procedures, so the trial court permitted Mr. Johnson to report for 

his sentence at a later date. After Mr. Johnson failed to report, the trial court vacated the 

six-year sentence and imposed an eight-year sentence. On appeal, the Eighth District 

Court of Appeals reversed the trial court’s judgment and ordered the trial court to 

reimpose the original sentence. 

{¶4} Upon remand, the trial court held a new sentencing hearing. During that 

hearing, the trial court told Mr. Johnson that he was before the court so that the trial court 

could reimpose the original six-year sentence. After hearing from the parties, the trial 

court imposed sentence, but, according to the transcript of the proceedings, the trial court 

stated that it was imposing a six-month sentence on count one, not a six-year sentence. 

The trial court’s new judgment of conviction, however, reflected that the trial court 

imposed a sentence of six years, not six months. 

{¶5} Mr. Johnson attempted to appeal the trial court’s judgment. The trial court 

eventually vacated its resentencing entry and reinstated its original sentencing entry that 

sentenced Mr. Johnson to six years in prison. In a subsequent appeal, the Eighth District 

Court of Appeals recognized that its mandate did not authorize the trial court to resentence 

Mr. Johnson and that its mandate in the original appeal limited the trial court to vacating 
C.A. No. 21CA011789 

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the sentencing entry with the eight-year sentence and reinstating the original judgment of 

conviction. 

{¶6} In his petition, Mr. Johnson has argued that the last sentence the trial court 

imposed in open court was for a term of six months. He concludes, therefore, that he has 

served the maximum sentence and he is entitled to immediate release. Warden Foley 

moved to dismiss. He argued that habeas corpus relief is only available when the prisoner 

demonstrates that he is entitled to immediate release from confinement or that the trial 

court lacked jurisdiction to impose sentence. Warden Foley concluded that habeas corpus 

is not available because Mr. Johnson has not completed his six-year sentence and because 

Mr. Johnson has not argued that the trial court lacked jurisdiction to impose sentence. 

{¶7} State habeas corpus relief is available in specific, extraordinary 

circumstances. R.C. Chapter 2725 prescribes the procedure for bringing a habeas corpus 

action. The petitioner must file a petition that contains specific, required, information. If 

this Court concludes that the petition states a facially valid claim, it must allow the writ. 

R.C. 2725.06. On the other hand, if the petition fails to state a claim, this Court should 

dismiss the petition. Chari v. Vore, 91 Ohio St.3d 323, 327 (2001). For this Court to 

grant the writ, Mr. Johnson must demonstrate that there is an unlawful restraint of his 

liberty or that the judgment of conviction and sentence is void due to lack of jurisdiction. 

Pegan v. Crawmer, 76 Ohio St.3d 97, 99-100 (1996). Mr. Johnson has only alleged that 

there is an unlawful restraint on his liberty because he has served his six-month sentence 

and the eight-year sentence is void. 
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{¶8} As noted above, to dismiss the petition, it must appear beyond doubt from 

the petition, after all factual allegations are presumed true and all reasonable inferences 

are made in favor of the petitioner, that he can prove no set of facts warranting relief. 

State ex rel. Dehler v. Sutula, Judge, 74 Ohio St.3d 33, 34 (1995). “A writ of habeas 

corpus is warranted in certain extraordinary circumstances ‘where there is an unlawful 

restraint of a person’s liberty and there is no adequate remedy in the ordinary course of 

law.’” Johnson v. Timmerman-Cooper, 93 Ohio St.3d 614, 616 (2001), quoting Pegan v. 

Crawmer, 76 Ohio St.3d 97, 99 (1996). 

{¶9} Mr. Johnson has argued that he has completed his six-month sentence, so 

he is entitled to immediate release. His petition, along with the attachments, however, 

demonstrate that the trial court imposed a six-year sentence, which it improperly vacated 

and ordered an eight-year sentence. On appeal, the Eighth District Court of Appeals 

recognized that the trial court erred when it vacated the six-year sentence and it ordered 

the trial court to reinstate the original sentence. The Eighth District Court of Appeals 

recognized, in a later appeal, that the trial court was limited to following its remand 

instructions, so the trial court could not have held a new sentencing hearing at which the 

trial court mistakenly referred to a “six-month” sentence rather than a “six-year” sentence. 

State v. Johnson, 8th Dist. Cuyahoga No. 107123, 2019-Ohio-632, ¶ 16 (“[T]he trial court 

was simply following our limited remand instructions when it reinstated Johnson’s 

original six-year sentence.”). Mr. Johnson has appealed that sentence to the Eighth 

District Court of Appeals and the sentence has been affirmed on appeal. Id. at ¶ 14 
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(stating that, in the prior appeal, the court concluded that the trial court did not have the 

authority to vacate Johnson’s original six-year sentence). 

{¶10} Considering Mr. Johnson’s allegations as true, they are insufficient to 

warrant habeas corpus relief. The trial court did not impose a valid six-month sentence 

that Mr. Johnson has completed, requiring his immediate release from prison. The motion 

to dismiss is granted, and this case is dismissed. Costs are taxed to Mr. Johnson. The 

clerk of courts is hereby directed to serve upon all parties not in default notice of this 

judgment and its date of entry upon the journal. See Civ.R. 58. 

 

 DONNA J. CARR 

 FOR THE COURT 

CALLAHAN, J. 

SUTTON, J. 

CONCUR. 

APPEARANCES: 

MARVIN F. JOHNSON, SR., Pro Se, Petitioner. 

DAVE YOST, Attorney General, and MAURA O’NEILL JAITE, Senior Assistant 

Attorney General, for Respondent.