California ex rel. Dunston v. Ohio Dept. of Corr.

2022 Ohio 3676

• Court: Ohio Court of Appeals
• Decided: October 13, 2022
• Docket: 111426
• Status: Published

Opinion

[Cite as California ex rel. Dunston v. Ohio Dept. of Corr., 2022-Ohio-3676.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

CALIFORNIA EX: RELATOR KEVIN DUNSTON (CDCR), :

Relator, :

v. : No. 111426

OHIO DEPT. OF CORRECTIONS/ : ADULT PAROLE AUTHORITY, : Respondents.

JOURNAL ENTRY AND OPINION

JUDGMENT: PETITION DISMISSED RELEASED AND JOURNALIZED: October 7, 2022

Writ of Habeas Corpus Motion No. 556897 Order No. 558165

Appearances:

Kevin Dunston, pro se.

David Yost, Ohio Attorney General, and M. Scott Criss, Assistant Attorney General, for respondents.

SEAN C. GALLAGHER, A.J.:

On April 7, 2022, the petitioner, Kevin Dunston, commenced this

habeas corpus action against the respondents, the Ohio Department of Rehabilitation and Correction and The Adult Parole Authority. The gravamen of the

petition appears to be that he seeks the removal of a detainer from an old conviction

so that he could be released earlier from a California prison. On July 27, 2022, the

respondents, through the Ohio Attorney General, moved to dismiss. Dunston never

filed a response. For the following reasons, this court grants the motion to dismiss

and dismisses the petition for a writ of habeas corpus.

As gleaned from Dunston’s filing, in State v. Dunston, Cuyahoga C.P.

No. CR-04-454560, Dunston pled guilty to drug possession, a fifth-degree felony,

and the trial court sentenced him to six months in prison. Dunston served his

sentence and was released on postrelease control. He apparently violated

postrelease control, and Ohio placed a detainer on him, warrant #LAECI473887. In

December 2018, Dunston was convicted of robbery in California and sentenced to

five years. He now complains that the detainer is preventing him from receiving a

higher rate of good time and placement in special camps, like a culinary camp. He

alleges that he has sought to have the detainer dismissed, but to no avail. He now

brings this habeas corpus petition to have the detainer dismissed. Dunston v.

Cuyahoga Cty. Court, 8th Dist. Cuyahoga No. 110712, 2021-Ohio-4127.

Dunston’s petition is fatally defective. R.C. 2725.04(D) requires a

copy of the commitment or cause of detention. The Supreme Court of Ohio in State

ex rel. Davis v. Sheldon, Slip Opinion No. 2022-Ohio-2789, has held that all

commitment papers are necessary for a complete understanding of the petition and

that sentencing entries and parole-revocation decisions are commitment papers. Dunston has attached papers, including a copy of the warrant detainer,

correspondence between California and Ohio, and the decision of the California

prison regarding the denial of higher good time rates and admission to special

camps, but he did not include the sentencing entries for his Ohio convictions, the

California robbery conviction, or the cause of the detainer.

R.C. 2725.04 further requires the petition to be verified. In Chari v.

Vore, 91 Ohio St.3d 323, 327, 744 N.E.2d 763 (2001), the Supreme Court of Ohio

ruled, “‘Verification’ means a ‘formal declaration made in the presence of an

authorized officer, such as a notary public, by which one swears to the truth of the

statement in the document.’ Garner, Black’s Law Dictionary (7 Ed.1999) 1556 * * *.”

Id. at 327. The Supreme Court of Ohio then reversed the decision of the court of

appeals granting the writ and awarding relief and held that the cause should have

been summarily dismissed because the petition was procedurally defective.

Dunston’s attachments are signed under penalty of perjury, but they are not

notarized. Thus, they are insufficient under Ohio law.

Dunston has also failed to comply with R.C. 2969.25, which requires

an affidavit that describes each civil action or appeal filed by the relator within the

previous five years in any state or federal court, including the case number and

parties. The relator’s failure to comply with R.C. 2969.25 warrants dismissal of the

complaint for a writ of mandamus. State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio

St.3d 421, 696 N.E.2d 594 (1998), and State ex rel. Alford v. Winters, 80 Ohio St.3d

285, 685 N.E.2d 1242 (1997). Relator also did not comply with R.C. 2969.25(C), which requires that an inmate file a certified statement from his prison cashier

setting forth the balance in his private account for each of the preceding six months.

This also is sufficient reason to deny the petition, deny indigency status, and assess

costs against the petitioner. State ex rel. Pamer v. Collier, 108 Ohio St.3d 492,

2006-Ohio-1507, 844 N.E.2d 842; State ex rel. Hunter v. Cuyahoga Cty. Court of

Common Pleas, 88 Ohio St.3d 176, 724 N.E.2d 420 (2000); and Hazel v. Knab, 130

Ohio St.3d 22, 2011-Ohio-4608, 955 N.E.2d 378 — the defect may not be cured by

subsequent filings. The court notes that Dunston tried to fulfill these requirements,

but the lack of notarized affidavits is fatal to his efforts.

Accordingly, this court grants the motion to dismiss and dismisses the

petition for habeas corpus. Petitioner to pay costs. This court directs the clerk of

courts to serve all parties notice of the judgment and its date of entry upon the

journal as required by Civ.R. 58(B).

Petition dismissed.

__________ SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE

ANITA LASTER MAYS, J., and LISA B. FORBES, J., CONCUR