Wilson v. Eberlin, 08 Be 9 (8-21-2008)

2008 Ohio 4320

• Court: Ohio Court of Appeals
• Decided: August 21, 2008
• Docket: No. 08 BE 9.
• Status: Published

Opinion

OPINION AND JUDGMENT ENTRY {¶ 1} This case involves an original action to this court on a petition for a writ of habeas corpus by Petitioner on May 6, 2008. Respondent has not answered the petition and Petitioner has moved for summary judgment. However, we must dismiss this petition for failing to properly invoke this court's jurisdiction.

{¶ 2} RC. 2725.04(D) requires that a person seeking a writ of habeas corpus attach "[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." The failure to attach commitment papers is a defect which is fatal to a petition for a writ of habeas corpus. Waites v. Gansheimer, 110 Ohio St.3d 250, 2006-Ohio-4358, at ¶ 7.

{¶ 3} In addition, Petitioner has failed to comply with R.C. 2969.25(A), which requires an inmate who commences a civil action against a government entity or employee to file "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" at the time the inmate commences the action. This also warrants dismissal of the petition. State ex rel. Zanders v. Ohio ParoleBd., 82 Ohio St.3d 421, 1998-Ohio-0218.

{¶ 4} For these reasons, Petitioner's petition for a writ of habeas corpus is dismissed sua sponte.

{¶ 5} Costs taxed against Petitioner. Final order. Clerk to serve notice on the parties as provided by the Ohio Rules of Civil Procedure.

DeGenaro, P.J., concurs. Vukovich, J., concurs. Waite, J., concurs.