State ex rel. Richard v. Seidner

Per Curiam. Richard asserts in his sole proposition of law that the court of appeals abused its discretion in denying his second motion for relief from the judgment dismissing his habeas corpus petition without conducting an evidentiary hearing. But an evidentiary hearing is not required where the motion and attached evidentiary material do not contain allegations of operative facts which would warrant Civ.R. 60(B) relief. Richard, 76 Ohio St.3d at 151, 666 N.E.2d at 1136, citing S. Ohio Coal Co. v. Kidney (1995), 100 Ohio App.3d 661, 667, 654 N.E.2d 1017, 1021. Richard’s motion and attached evidentiary material did not allege operative facts entitling him to Civ.R. 60(B) relief. As we recently held in a separate case involving Richard, his claim challenging the validity or sufficiency of the indictment is not cognizable in habeas corpus. State ex rel. Richard v. Seidner (1996), 77 Ohio St.3d 68, 69, 671 N.E.2d 28 (“ * * * Richard’s claim challenges the validity or sufficiency of his indictment, is nonjurisdictional in nature, and should have been raised on appeal of his criminal conviction rather than in habeas corpus.”); see, also, State ex rel. Durkin v. Ungaro (1988), 39 Ohio St.3d 191, 192, 529 N.E.2d 1268, 1269 (Civ.R. 60[B] motion for relief from judgment cannot be used as a substitute for a timely appeal.). In addition, the indictment attached to his second motion for relief from judgment specifically alleged that the charged offense occurred in Cuyahoga County. Based on the foregoing, the court of appeals did not abuse its discretion in denying Richard’s second motion for relief from judgment without holding an evidentiary hearing. The court of appeals properly determined that Richard failed to provide the court with any reasons justifying relief from its previous judgment dismissing his habeas corpus petition. Accordingly, we affirm the judgment of the court of appeals. Judgment affirmed. Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur.