Smith v. Sheldon

2018 Ohio 468

• Court: Ohio Court of Appeals
• Decided: February 5, 2018
• Docket: 17 CA 54
• Status: Published

Opinion

[Cite as Smith v. Sheldon, 2018-Ohio-468.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

EDDIE LEE SMITH JUDGES: Hon. John W. Wise, P. J. Petitioner Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 17 CA 54 EDWARD SHELDON, WARDEN

Respondent OPINION

CHARACTER OF PROCEEDING: Writ of Habeas Corpus

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: February 5, 2018

APPEARANCES:

For Petitioner For Respondent

EDDIE LEE SMITH JERRI FOSNAUGHT PRO SE ASSISTANT ATTORNEY GENERAL 1150 North Main Street 150 East Gay Street, 16th Floor Mansfield, Ohio 44901 Columbus, Ohio 43215 Richland County, Case No. 17 CA 54 2

Wise, J.

{¶1} Petitioner, Eddie Lee Smith, has filed a petition for writ of habeas corpus

claiming Petitioner is being held for convictions of crimes with which he was not charged.

He also raises claims the trial court lacked subject matter jurisdiction. Respondent has

filed a motion to dismiss.

{¶2} Petitioner has failed to attach all commitment papers as required. Revised

Code 2725.04(D) provides, “(D) A copy of the commitment or cause of detention of such

person shall be exhibited, if it can be procured without impairing the efficiency of the

remedy; or, if the imprisonment or detention is without legal authority, such fact must

appear.” Petitioner has attached only a portion of the commitment papers in Case

Number CR 2015 12 3774, and Petitioner has not attached any commitment papers from

Case Number 2015 09 2837.

{¶3} A “[h]abeas 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.”

Boyd v. Money, 82 Ohio St.3d 388, 1998 -Ohio- 221, 696 N.E.2d 568.

{¶4} R.C. 2969.25(A) governs the procedure for actions filed by inmates and

provides in relevant part, “(A) At the time that an inmate commences a civil action or

appeal against a government entity or employee, the inmate shall file with the court an

affidavit that contains a description of each civil action or appeal of a civil action that the

inmate has filed in the previous five years in any state or federal court.” Richland County, Case No. 17 CA 54 3

{¶5} “[U]nder Ohio law, state writ actions are civil actions. See Henderson v.

James (1895), 52 Ohio St. 242, 259, 39 N.E. 805” Fuqua v. Williams, 100 Ohio St.3d 211,

2003–Ohio–5533, 797 N.E.2d 982, ¶ 7 (2003).

{¶6} The petition in this case did not contain an affidavit of prior civil actions.

{¶7} The Supreme Court has approved the dismissal of a habeas petition where

an inmate fails to file an affidavit in compliance with R.C. 2969.25. See Fuqua v. Williams,

2003–Ohio–5533, 100 Ohio St.3d 211, 797 N.E.2d 982, HN 1.

{¶8} Finally, Petitioner has failed to include an affidavit of verification. “R.C.

2725.04 further requires the petition to be verified. In Chari v. Vore, 91 Ohio St.3d 323,

2001–Ohio–49, 744 N.E.2d 763, the Supreme Court of Ohio ruled: “ ‘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 statement in the document.’ Garner, Black's

Law Dictionary (7 Ed.1999) 1556 * * *.” Cruz v. Pinkney, 8th Dist. Cuyahoga No. 105454,

2017-Ohio-4308, ¶ 3.

{¶9} Because Petitioner has failed to attach all necessary commitment papers

failed to supply the affidavit of prior civil actions, and failed to file an affidavit of verification,

the petition is dismissed.

By: Wise, P. J. Delaney, J., and Baldwin, J., concur.

JWW/d 0126