Miller v. Bradshaw

2011 Ohio 4972

Opinion

[Please see nunc pro tunc opinion at 2011-Ohio-5380.]

COURT OF APPEALS

RICHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

JUDGES:

WAYNE MILLER : Hon. W. Scott Gwin, P.J.

: Hon. William B. Hoffman, J.

Petitioner : Hon. John W. Wise, J.

:

-vs- :

: Case No. 2011-CA-79 WARDEN MARGERIT(SIC) : BRADSHAW :

: OPINION

Respondent

CHARACTER OF PROCEEDING: Writ of Habeas Corpus

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: September 26, 2011

APPEARANCES: For Petitioner For Respondent

WAYNE MILLER PRO SE P.O. Box 8107 Mansfield, OH 44901

Gwin, P.J.

{1} Petitioner, Wayne Miller, 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.

{5} We further note a “Court of Appeals [is] required to dismiss [a] petition for habeas corpus sua sponte, where defendant failed to verify the petition for habeas

Richland County, Case No. 2011-CA-79 3

corpus, support his complaint with an affidavit specifying the details of the claim, attach a copy of commitment or cause of detention to petition, name the correct Respondent, or attach an affidavit describing each civil action or appeal filed by the Relator within previous five years in any state or federal court. R.C. 2725.04(B, D), 2969.25.” Melton v. State 2002 WL 31040689 (Ohio App. 8 Dist.).

{6} The petition filed does not contain an affidavit detailing Petitioner's prior civil actions.

{7} Petitioner's failure to include these items requires dismissal of this case.

By Gwin, P.J., Hoffman, J., and Wise, J., concur

_________________________________

HON. W. SCOTT GWIN

_________________________________

HON. WILLIAM B. HOFFMAN

_________________________________

HON. JOHN W. WISE

WSG:clw 0914

IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

WAYNE MILLER :

:

Petitioner :

:

:

-vs- : JUDGMENT ENTRY :

WARDEN MARGERIT(SIC) BRADSHAW :

:

:

Respondent : CASE NO. 2011-CA-79

For the reasons stated in our accompanying Memorandum-Opinion, the Petition for Writ of Habeas Corpus is dismissed. Costs to Petitioner.

_________________________________

HON. W. SCOTT GWIN

_________________________________

HON. WILLIAM B. HOFFMAN

_________________________________

HON. JOHN W. WISE