Mallory v. Foley

2023 Ohio 226

• Court: Ohio Court of Appeals
• Decided: January 20, 2023
• Docket: 112288
• Status: Published

Opinion

[Cite as Mallory v. Foley, 2023-Ohio-226.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

DEVON L. MALLORY, :

Petitioner, : No. 112288 v. :

MR. FOLEY (WARDEN), :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: PETITION DISMISSED RELEASED AND JOURNALIZED: January 20, 2023

Writ of Habeas Corpus Order No. 561094

Appearances:

Devon L. Mallory, pro se.

SEAN C. GALLAGHER, J.:

Petitioner, Devon L. Mallory, seeks a writ of habeas corpus directing

“Mr. Foley (Warden)” 1 to release him because his conviction is “based on evidence

that is against the manifest weight of the evidence.” Mallory’s petition is fatally

defective. Therefore, it is sua sponte dismissed.

1This court notes that the petition is improperly captioned. It does not include the full name of a respondent as required by Civ.R. 10(A). On January 4, 2023, Mallory filed a single-page petition for writ of

habeas corpus. The sole argument raised is that an unspecified conviction is not

supported by the manifest weight of the evidence. Mallory attached to the petition

only the first two pages of an appellate decision in State v. Mallory, 2022-Ohio-

3667, 199 N.E.3d 104 (8th Dist.). The petition lacks any further argument or

indication of the source of Mallory’s commitment.

The sua sponte dismissal of a complaint for an extraordinary writ is

appropriate where it is frivolous or the claimant obviously cannot prevail on the facts

alleged therein. State ex rel. Allen v. Goulding, 156 Ohio St.3d 337, 2019-Ohio-858,

126 N.E.3d 1104, ¶ 6, citing State ex rel. Brooks v. O’Malley, 117 Ohio St.3d 385,

2008-Ohio-1118, 884 N.E.2d 42, ¶ 5. Also, “a court may dismiss a habeas petition

sua sponte if the petition does not contain a facially valid claim.” Al’Shahid v. Cook,

144 Ohio St.3d 15, 2015-Ohio-2079, 40 N.E.3d 1073, ¶ 7, citing State ex rel. Crigger

v. Ohio Adult Parole Auth., 82 Ohio St.3d 270, 271, 695 N.E.2d 254 (1998). Such is

the case when a petition for writ of habeas corpus is fatally procedurally defective.

In re Evans, 8th Dist. Cuyahoga No. 108316, 2019-Ohio-1129, ¶ 10.

Mallory cannot succeed in this action because he has failed to include

any commitment papers with his petition. “R.C. 2725.04(D) requires

a habeas petition to include the inmate’s commitment papers ‘if [they] can be

procured without impairing the efficiency of the remedy.’ Failure to attach the

required documents is fatal to a habeas petition.” McDonald v. Black, Slip Opinion

No. 2022-Ohio-3938, ¶ 6, citing Griffin v. McFaul, 116 Ohio St.3d 30, 2007-Ohio- 5506, 876 N.E.2d 527, ¶ 4. The only item attached to the petition in this case is the

first two pages of the appellate decision in Mallory. No commitment papers were

attached, and Mallory has not asserted that he was unable to obtain these papers.

This constitutes sufficient grounds for dismissal. McDonald at ¶ 12.

R.C. 2725.04 also requires that any petition for writ of habeas corpus

be verified. “The failure to verify a complaint for writ of habeas corpus is a grounds

for dismissal.” Dunkle v. Hill, 165 Ohio St.3d 580, 2021-Ohio-3835, 180 N.E.3d

1125, ¶ 8, citing State ex rel. Ranzy v. Coyle, 81 Ohio St.3d 109, 110, 689 N.E.2d 563

(1998). The single-page complaint lacks any statement or affidavit of verification.

Therefore, it is subject to dismissal.

Further, Mallory has not provided any of the affidavits required by

R.C. 2969.25. The affidavit requirements of this statute apply to habeas corpus

actions. Dunkle at ¶ 6, citing Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-

5533, 797 N.E.2d 982, ¶ 6. This statute requires an inmate in a state prison

institution commencing an action against a governmental entity or employee to

include an affidavit of prior civil actions or appeals of civil actions filed within the

previous five years. R.C. 2969.25(A). The failure to include this affidavit is grounds

for dismissal. Dunkle at ¶ 9, citing State ex rel. Ware v. Pureval, 160 Ohio St.3d

387, 2020-Ohio-4024, 157 N.E.3d 714, ¶ 5. No affidavit of prior civil actions was

submitted with the petition. Therefore, it is subject to dismissal.

Mallory also did not file an affidavit of indigency that includes a

statement from the institutional cashier as required by R.C. 2969.25(C). No affidavit of indigency of any kind was included, and Mallory did not pay the filing fee. This

fatal defect also constitutes sufficient grounds for dismissal and the imposition of

costs. Dunkle at ¶ 7, citing State ex rel. Hairston v. State, 10th Dist. Franklin No.

17AP-501, 2018-Ohio-104, ¶ 9, 15-19; and Wilson v. Miller, 7th Dist. Belmont No. 12

BE 6, 2012-Ohio-1303, ¶ 13.

Finally, even if all of these procedural defects could be overlooked,

this court does not have jurisdiction over the petition. According to R.C. 2725.03,

where a person is an inmate in an Ohio correctional institution a petition for writ of

habeas corpus must be filed in a court whose territorial jurisdiction includes the

institution housing the inmate. The petition indicates that Mallory is housed in an

institution in Grafton, Ohio. Grafton, Ohio, is not within Cuyahoga County, Ohio —

the territorial jurisdiction of this court. “[N]o court or judge other than the courts

or judges of the county in which the institution is located has jurisdiction to issue or

determine a writ of habeas corpus for [an inmate’s] production or discharge.” R.C.

2725.03. Therefore, this court cannot grant any relief to Mallory in this action. State

v. Patterson, 8th Dist. Cuyahoga No. 105109, 2017-Ohio-2664, ¶ 8-9.

For all these reasons, the petition for writ of habeas corpus is sua

sponte dismissed. Costs assessed against petitioner. The clerk is directed to serve

on the parties notice of this judgment and its date of entry upon the journal.

Civ.R. 58(B). Petition dismissed.

______________________ SEAN C. GALLAGHER, JUDGE

LISA B. FORBES, P.J., and MICHAEL JOHN RYAN, J., CONCUR