Burns v. Delaware Cty.

2011 Ohio 5642

• Court: Ohio Court of Appeals
• Decided: October 31, 2011
• Docket: 2011CAD060060
• Status: Published

Opinion

[Cite as Burns v. Delaware Cty., 2011-Ohio-5642.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: KEVIN D. BURNS, : Hon. W. Scott Gwin, P.J. : Hon. Julie A. Edwards, J. Petitioner, : Hon. Patricia A. Delaney, J. : v. : : Case No. 2011CAD060060 STATE OF OHIO : DELAWARE COUNTY, : : OPINION Respondent.

CHARACTER OF PROCEEDING: Writ of Habeas Corpus

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: October 31, 2011

APPEARANCES:

For Petitioner For Respondent

KEVIN D. BURNS PRO SE CAROL HAMILTON O'BRIEN Delaware County Jail Prosecuting Attorney 844 US RT. 42 140 N. Sandusky St., 3rd Fl. Delaware, OH 43015 Delaware, OH 43015 [Cite as Burns v. Delaware Cty., 2011-Ohio-5642.]

Gwin, P.J.

{¶ 1} Petitioner, Kevin D. Burns, has filed a petition for Writ of Habeas Corpus

alleging unlawful detention based upon his contention that Union County, has failed to

act on its probation holder within a reasonable amount of time. We find it unnecessary

to address the claims raised because Petitioner has failed to comply with the procedural

requirements for a habeas petition.

{¶ 2} A review of the complaint reveals Petitioner has failed to attach the

necessary commitment papers in compliance with R.C. 2725.04(D).

{¶ 3} The Supreme Court has held failure to comply with this requirement is a

fatal defect which cannot be cured, “[C]ommitment papers are necessary for a complete

understanding of the petition. Without them, the petition is fatally defective. When a

petition is presented to a court that does not comply with R.C. 2725.04(D), there is no

showing of how the commitment was procured and there is nothing before the court on

which to make a determined judgment except, of course, the bare allegations of

petitioner's application.” Bloss v. Rogers, 65 Ohio St. 3d 145, 602 N.E.2d 602. See

also, Boyd v. Money, 82 Ohio St.3d 388, wherein the Supreme Court held, “Habeas

corpus petitioner's failure to attach pertinent commitment papers to his petition rendered

petition fatally defective, and petitioner's subsequent attachment of commitment papers

to his post-judgment motion did not cure the defect.” R.C. § 2725.04(D).

{¶ 4} We find failure to include all pertinent entries has made a complete

understanding of the Petition impossible. Delaware County, Case No. 2011CAD060060 3

{¶ 5} Further, R.C. 2725.04 requires that petitions for habeas corpus be verified.

The instant petition does not contain an affidavit of verity. The Supreme Court of Ohio

has consistently upheld the dismissal of habeas corpus petitions which are not verified.

Hughley v. Saunders (2009), 123 Ohio St.3d 90, 2009-Ohio-4089, 914 N.E.2d 370.

{¶ 6} Finally, Petitioner has named “the State of Ohio, Delaware County” as the

Respondent which is improper. The proper Respondent is the person who is directly

responsible for keeping the petitioner in custody. Davis v. Wilson (2003), 100 Ohio

St.3d 269, 270, 798 N.E.2d 379, 380.

{¶ 7} For these reasons, Petitioner’s petition for writ of habeas corpus is

dismissed.

By Gwin, P.J.,

Edwards, J., and

Delaney, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JULIE A. EDWARDS

_________________________________ HON. PATRICIA A. DELANEY

WSG:clw 0906 [Cite as Burns v. Delaware Cty., 2011-Ohio-5642.]

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

KEVIN D. BURNS, : : Petitioner, : : : v. : JUDGMENT ENTRY : STATE OF OHIO DELAWARE COUNTY, : : : Respondent. : CASE NO. 2011CAD060060

For the reasons stated in our accompanying Memorandum-Opinion, Petitioner’s

petition for writ of habeas corpus is dismissed.