Stewart v. State

2012 Ohio 339

• Court: Ohio Court of Appeals
• Decided: January 30, 2012
• Docket: 11CAD100088
• Status: Published

Opinion

[Cite as Stewart v. State, 2012-Ohio-339.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

KEVIN MICHAEL STEWART

Petitioner

-vs-

STATE OF OHIO

Respondent

JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Julie A. Edwards, J.

Case No. 11CAD100088

OPINION

CHARACTER OF PROCEEDING: Writ of Habeas Corpus

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: January 30, 2012

APPEARANCES:

For Petitioner For Respondent

KEVIN M. STEWART CAROL HAMILTON O'BRIEN Delaware County Jail KYLE ROHRER 844 US RT 42 N 140 N. Sandusky Street Delaware, Ohio 43015 Delaware, Ohio 43015 Hoffman, P.J.

(¶1) Petitioner, Kevin Michael Stewart, has filed a petition for Writ of Habeas

Corpus alleging unlawful detention based upon his contention he received an unlawful

sentence.

(¶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 the failure to include all pertinent commitment papers has made a

complete understanding of the Petition impossible.

(¶5) Further, R.C. 2725.04 requires that petitions for habeas corpus be verified.

The instant petition does not contain an affidavit of verity. The Supreme Court of Ohio

has consistently upheld the dismissal of habeas corpus petitions which are not verified.

Hughley v. Saunders (2009), 123 Ohio St.3d 90, 2009-Ohio-4089, 914 N.E.2d 370. (¶6) Finally, Petitioner has further failed to comply with R.C. 2969.25 by failing

to file an affidavit detailing his prior civil filings. The Supreme Court has held, “The

requirements of R.C. 2969.25 are mandatory, and failure to comply with them subjects

an inmate's action to dismissal.” State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-

Ohio-2262, 788 N.E.2d 634, ¶ 5.

(¶7) For these reasons, Petitioner’s petition for writ of habeas corpus is

dismissed.

By: Hoffman, P.J.

Wise, J. and

Edwards, J. concur

s/ William B. Hoffman_________________ HON. WILLIAM B. HOFFMAN

s/ John W. Wise _____________________ HON. JOHN W. WISE

s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

KEVIN MICHAEL STEWART : : Petitioner : : -vs- : JUDGMENT ENTRY : STATE OF OHIO : : Respondent : Case No. 11CAD100088

For the reasons stated in our accompanying Opinion, Petitioner’s petition for writ

of habeas corpus is dismissed.

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ John W. Wise______________________ HON. JOHN W. WISE

s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS