In re Burns

2022 Ohio 2911

• Court: Ohio Court of Appeals
• Decided: August 22, 2022
• Docket: 22CA011877
• Status: Published

Opinion

[Cite as In re Burns, 2022-Ohio-2911.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

IN RE: MICHAEL BURNS C.A. No. 22CA011877 Petitioner

ORIGINAL ACTION IN HABEAS CORPUS

Dated: August 22, 2022

PER CURIAM.

{¶1} Petitioner Michael Burns has filed what appears to be a petition for writ of habeas

corpus. The “petition” is captioned “State Habeas” and it asks for Mr. Burns’ release from prison.

It does not contain a case caption or list any parties as petitioner or respondent. The petition

alleges error in his postrelease control revocation hearing and order such that he will not be

released until December 2022 rather than October 2022. Mr. Burns’ petition fails to comply with

the requirements of R.C. 2725.04 for a writ of habeas corpus and this Court must dismiss this

case.

{¶2} Mr. Burns failed to comply with the statutory requirements for filing a petition for

habeas corpus. R.C. 2725.04 imposes requirements on a petition for habeas corpus, including

that the commitment papers be attached and that the petition be verified.

{¶3} The Ohio Supreme Court has held that because “‘commitment papers are

necessary for a complete understanding of the petition,’” the omission of commitment papers is

a fatal defect. Brown v. Rogers, 72 Ohio St.3d 339, 341 (1995), quoting Bloss v. Rogers, 65 Ohio C.A. No. 22CA011877 Page 2 of 3

St.3d 145, 146 (1992). “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.” Brown at 341, quoting Bloss at 146.

{¶4} Further, a petition filed without any verification must be dismissed. Chari v. Vore,

91 Ohio St.3d 323, 328 (2001). “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

statements in the document.” Id. at 327. To meet the verification requirement, Mr. Burns must

have expressly sworn to the truth of the facts contained in the petition. Id. at 328.

{¶5} Mr. Burns did not even sign the petition. There was no “formal act or presence

calculated to bring to bear upon the declarant’s conscience the full meaning of what he does.”

Id. at 327, citing Youngstown Steel Door Co. v. Kosydar, 33 Ohio App.2d 277 (1973). Mr. Burns

did not make a formal declaration by which he swore to the truth of the statements in the

document. See Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, ¶ 35. Because the

petition is not verified, it is defective and must be dismissed.

{¶6} We note that Mr. Burns also failed to comply with the mandatory requirements of

R.C. 2969.25, which provides another basis for dismissal of this case. Because he failed to name

a respondent, however, and the petition failed to comply with the habeas corpus statutory

requirements, this Court will not further address his failure to comply with R.C. 2969.25.

{¶7} Because Mr. Burns did not comply with the requirements of R.C. 2725.04, this

case is dismissed. Costs are taxed to Mr. Burns. The clerk of courts is hereby directed to serve C.A. No. 22CA011877 Page 3 of 3

upon all parties not in default notice of this judgment and its date of entry upon the journal. See

Civ.R. 58.

JENNIFER L. HENSAL FOR THE COURT

HENSAL, J. TEODOSIO, J. CONCUR.

APPEARANCES:

MICHAEL BURNS, Pro se, Petitioner.