Summary
In Lippert v. Engle (1977), 49 Ohio St.2d 281, 3 O.O.3d 434, 361 N.E.2d 239, we held that to withstand a motion to dismiss, a petition in habeas corpus must conform to R.C. 2725.04 and attack the jurisdiction of the sentencing court. We find the petition in this case barely adequate to meet this existing standard and grant the writ pursuant to R.C. 2725.06.
Summary of this case from Hammond v. DallmanOpinion
No. 77-35
Decided March 30, 1977.
Habeas corpus — Petition dismissed, when — Jurisdictional challenge required.
APPEAL from the Court of Appeals for Ross County.
This is an appeal as of right from the dismissal of a petition for a writ of habeas corpus by the Court of Appeals.
Petitioner, Robert L. Lippert, alleges that "he is unlawfully restrained of his liberty without legal authority, by the aforementioned respondents, in the Chillicothe Correctional Institute * * *."
The Court of Appeals dismissed the petition "for the reason that no facts upon which relief can be granted have been stated."
Mr. Robert L. Lippert, pro se. Mr. William J. Brown, attorney general, and Mr. Dennis L. Sipe, for appellees Superintendent of the Chillicothe Correctional Institute and others.
Petitioner contends that his allegations were sufficient under R.C. 2725.04 to withstand the motion to dismiss. As support for that contention, petitioner cites Featheringham v. Eckle (1957), 81 Ohio Law Abs. 450.
Petitioner's reliance on Featheringham is misplaced. In Freeman v. Maxwell (1965), 4 Ohio St.2d 4, this court reaffirmed the necessity of successfully challenging the jurisdiction of the sentencing court as a predicate to the issuance of a writ of habeas corpus.
The requirement that petitioners must attack the jurisdiction of the sentencing court is all the more apparent where, as noted in Ross v. Court (1972), 30 Ohio St.2d 323, "the sentencing court had jurisdiction to render the judgment of conviction." In Ross, as here, petitioner made no claim of lack of jurisdiction of the sentencing court and this court sustained the motion to dismiss therein.
For reason of the foregoing, the judgment of the Court of Appeals, dismissing the petition, is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.