Clark v. Miller

2013 Ohio 2958

• Court: Ohio Court of Appeals
• Decided: June 28, 2013
• Docket: 13 BE 13
• Status: Published

Opinion

[Cite as Clark v. Miller, 2013-Ohio-2958.] STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

RICHARD D. CLARK ) CASE NO. 13 BE 13 ) PETITIONER ) ) VS. ) OPINION AND ) JUDGMENT ENTRY MICHELLE MILLER, WARDEN ) ) RESPONDENT )

CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus

JUDGMENT: Dismissed.

APPEARANCES:

For Petitioner: Richard D. Clark, Pro se #A647-758 Belmont Correctional Institution P.O. Box 540 St. Clairsville, Ohio 43950

For Respondent: Atty. Mike DeWine Attorney General of Ohio Atty. Mary Anne Reese Assistant Attorney General Criminal Justice Section 441 Vine Street, Suite 1600 Cincinnati, Ohio 45202

JUDGES:

Hon. Cheryl L. Waite Hon. Joseph J. Vukovich Hon. Mary DeGenaro Dated: June 28, 2013 [Cite as Clark v. Miller, 2013-Ohio-2958.] PER CURIAM.

{¶1} Petitioner Richard D. Clark has filed a petition for writ of habeas corpus

pursuant to R.C. 2725.01, et seq. He requests to be immediately released from

prison because he allegedly was not credited with 249 days of jail-time credit.

Petitioner failed to attach any pertinent commitment papers to his petition as required

by R.C. 2725.04(D). Petitioner refers to four different criminal case numbers in his

petition, and it is unclear from the petition what county, or even what state, is involved

in any of these cases, much less any particulars about the reasons for and length of

the sentence of incarceration in any of the cases. Failure to attach copies of

commitment papers, such as the judgment entry of sentence, as part of the original

filing of the petition for habeas corpus requires the dismissal of the petition. Bloss v.

Rogers, 65 Ohio St.3d 145, 146, 602 N.E.2d 602 (1992).

{¶2} Further, Petitioner failed to attach to his petition an affidavit describing

the civil actions he has filed within the past five years, as required by R.C.

2969.25(A). The Ohio Supreme Court has held that the requirements in R.C.

2969.25(A) apply to state habeas corpus actions. Fuqua v. Williams, 100 Ohio St.3d

211, 2003-Ohio-5533, 797 N.E.2d 982, ¶2, 6-9. Failure to file the required affidavit of

prior civil actions is grounds for immediate dismissal of a habeas petition, and the

petition cannot be amended to correct the error. Waters v. Wolfe, 7th Dist. No. 06

NO 336, 2007-Ohio-358, ¶11; State ex rel. Washington v. Ohio Adult Parole Auth., 87

Ohio St.3d 258, 259, 719 N.E.2d 544 (1999); Fuqua at ¶9. Since we resolved one of

Petitioner's prior habeas filings only a few months ago, we are well aware that he has

at least one prior case that should have been included on the mandatory notification. -2-

Clark v. Miller, 7th Dist. No. 12 BE 32, 2012-Ohio-5606. Petition sua sponte

dismissed.

{¶3} Final order. Clerk to serve notice as provided by the Civil Rules.

Waite, J., concurs.

Vukovich, J., concurs.

DeGenaro, P.J., concurs.