Orr v. Lazaroff

2016 Ohio 3315

• Court: Ohio Court of Appeals
• Decided: June 8, 2016
• Docket: 15 CA 78
• Status: Published

Opinion

[Cite as Orr v. Lazaroff, 2016-Ohio-3315.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

DARLLEL B. ORR JUDGES: Hon. Sheila G. Farmer, P. J. Petitioner Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vs- Case No. 15 CA 78 ALAN LAZAROFF, WARDEN

Respondent OPINION

CHARACTER OF PROCEEDING: Habeas Corpus

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: June 8, 2016

APPEARANCES:

For Petitioner For Respondent

DARLLEL B. ORR, PRO SE MICHAEL DEWINE MANSFIELD CORR. INSTITUTION OHIO ATTORNEY GENERAL Post Office Box 788 JONATHAN R. KHOURI Mansfield, Ohio 44901 ASSISTANT ATTORNEY GENERAL 150 East Gay Street, 16th Floor Columbus, Ohio 43215 Richland County, Case No. 15 CA 78 2

Wise, J.

{¶1} Petitioner, Darllel B. Orr, has filed a petition for Writ of Habeas Corpus

alleging unlawful detention based upon the contention his constitutional rights were

violated due to a fabricated affidavit making the search warrant defective. Respondent

has filed a motion to dismiss for failing to comply with the procedural requirements for a

habeas corpus petition and for failure to state a claim upon which relief may be granted.

Petitioner has filed a motion for judgment on the pleadings.

{¶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, “Such a failure is fatal to a petition for habeas corpus.”

State ex rel. Arroyo v. Sloan, 142 Ohio St.3d 541, 2015-Ohio-2081, 33 N.E.3d 56, 57, ¶

3 (2015).

{¶4} “[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). Richland County, Case No. 15 CA 78 3

{¶5} Petitioner’s failure to attach all necessary commitment papers to his initial

petition is fatal, and the petition must be dismissed.

{¶6} For these reasons, Petitioner’s petition for writ of habeas corpus is

dismissed.

By: Wise, J.

Farmer, P. J., and

Gwin, J., concur.

JWW/d 0511