State ex rel. Foster v. Foley , 2022 Ohio 3168 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Foster v. Foley, Slip Opinion No. 2022-Ohio-3168.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2022-OHIO-3168THE STATE EX REL . FOSTER, APPELLANT , v. FOLEY, WARDEN, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Foster v. Foley, Slip Opinion No.
2022-Ohio-3168.]
Habeas corpus—Inmate account statement submitted with petition does not comply
with R.C. 2969.25(C), and petition fails to comply with R.C. 2725.04’s
requirement that a habeas petition be verified—Court of appeals’ dismissal
of petition affirmed.
(No. 2022-0186—Submitted July 12, 2022—Decided September 13, 2022.)
APPEAL from the Court of Appeals for Lorain County, No. 21-CA-011812,
2022-Ohio-35.
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Per Curiam.
{¶ 1} Appellant, Ezra C. Foster, appeals the Ninth District Court of
Appeals’ dismissal of his petition for a writ of habeas corpus. Foster has also filed
SUPREME COURT OF OHIO
a “motion seeking consequences” for appellee Keith Foley’s failure to file a brief
in this appeal. We affirm the court of appeals’ judgment and deny Foster’s motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} Foster is currently incarcerated at the Grafton Correctional Institution,
where Foley is the warden. Foster was convicted in 1989 of five counts of
aggravated rape and sentenced to an aggregate prison term of 20 years to life. He
was released on parole in May 2016 after serving 27 years. One of the conditions
of Foster’s parole was that he have “no unsupervised contact with minors [and]
supervising adults [had to] be approved” by the Ohio Adult Parole Authority
(“APA”).
{¶ 3} On February 1, 2021, Foster was arrested by his APA supervising
officer for having unsupervised contact with a minor on two occasions in January
2021. A parole-revocation hearing was held on March 24, 2021. Foster was found
guilty of the charged violations and ordered to serve 36 months in prison before
again becoming eligible for parole.
{¶ 4} On November 9, 2021, Foster filed a petition for a writ of habeas
corpus in the court of appeals. Foster sought immediate release from prison,
alleging that his parole-revocation hearing had not been held within the time
prescribed by an Ohio Department of Rehabilitation and Correction policy. Foster
attached a signed verification to his petition, but his signature was not notarized.
Foster also attached to his petition an affidavit of indigency and an inmate account
statement, as required by R.C. 2969.25(C) for inmates who (like Foster) seek a
waiver of filing fees. The inmate account statement filed by Foster covered the
period of February 1 through August 26, 2021.
{¶ 5} The court of appeals sua sponte dismissed Foster’s petition, finding
that it failed to comply with the requirements of R.C. 2969.25(C) and 2725.04.
2022-Ohio-35, ¶ 1. Foster’s inmate account statement failed to comply with R.C.
2969.25(C) because it did not cover the six-month period preceding the filing of
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January Term, 2022
Foster’s habeas petition. And Foster’s petition was not verified under R.C.
2725.04, because it was unsworn.
{¶ 6} Foster appealed to this court as of right.
II. ANALYSIS
A. Foster’s Motion
{¶ 7} Because Foley did not file a merit brief in this appeal, Foster has filed
a “motion seeking consequences of not filing a brief.” Foster asks that this court
accept his statement of facts and issues as correct and reverse the court of appeals’
judgment.
{¶ 8} Under S.Ct.Prac.R. 16.07(B), we may accept an appellant’s statement
of facts and issues as correct and reverse the judgment below if the appellant’s merit
brief reasonably appears to sustain reversal. State ex rel. Davidson v. Beathard,
165 Ohio St.3d 558, 2021-Ohio-3125, 180 N.E.3d 1105, ¶ 10. But even if we were
to accept Foster’s statement of facts and issues as correct, his brief does not provide
a basis for reversal of the court of appeals’ judgment. We therefore deny the
motion.
B. Dismissal of Foster’s Petition
{¶ 9} This court reviews de novo a court of appeals’ dismissal of a habeas
corpus petition. State ex rel. Steele v. Foley, 164 Ohio St.3d 540, 2021-Ohio-2073,
173 N.E.3d 1209, ¶ 6.
{¶ 10} An inmate seeking a waiver of the court’s filing fees when
commencing a civil action against a governmental entity or employee in a court of
common pleas, court of appeals, county court, or municipal court must file with his
complaint an affidavit stating that he is seeking a waiver of the prepayment of the
court’s full filing fees and an affidavit of indigency. R.C. 2969.25(C). The affidavit
must contain (1) a statement setting forth the balance of the inmate’s institutional
account for each of the preceding six months and (2) a statement that sets forth all
other cash and things of value owned by the inmate. Id. Noncompliance with these
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requirements is a proper basis for dismissal of the action. State ex rel. Evans v.
McGrath, 151 Ohio St.3d 345, 2017-Ohio-8290, 88 N.E.3d 957, ¶ 5.
{¶ 11} Foster’s inmate account statement does not comply with the statute,
because it does not cover the six months preceding the filing of his petition; the
statement omits the two months immediately preceding the filing of the petition.
This defect was a proper basis for dismissal. See Russell v. Duffey, 142 Ohio St.3d
320, 2015-Ohio-1358, 29 N.E.3d 978, ¶ 12.
{¶ 12} Likewise proper was dismissal of Foster’s petition for failing to
comply with R.C. 2725.04’s requirement that a habeas petition be verified. To be
properly verified, a declaration must be sworn in the presence of an authorized
officer, such as a notary public. See Chari v. Vore, 91 Ohio St.3d 323, 327, 744
N.E.2d 763 (2001). Foster’s declaration is unsworn, rendering his petition fatally
defective. See Hawkins v. S. Ohio Corr. Facility, 102 Ohio St.3d 299, 2004-Ohio-
2893, 809 N.E.2d 1145, ¶ 4.
{¶ 13} Foster challenges the verification requirement, arguing that it
conflicts with Civ.R. 11, which states that pleadings need not be verified except
when otherwise required by the Rules of Civil Procedure. This argument is without
merit. Civ.R. 1(C) provides that the Rules of Civil Procedure “to the extent that
they would by their nature be clearly inapplicable, shall not apply to procedure
* * * in all other special statutory proceedings.” R.C. Chapter 2725 prescribes a
statutory proceeding for bringing a habeas action. Pegan v. Crawmer, 73 Ohio
St.3d 607, 608-609, 653 N.E.2d 659 (1995). And though all civil rules are not
“clearly inapplicable” in habeas actions, the verification requirement in R.C.
2725.04 takes precedence over the conflicting provision of Civ.R. 11. See id. at
609 (holding that court of appeals should have proceeded under R.C. Chapter 2725
procedure rather than dismissing action under the Rules of Appellate Procedure).
{¶ 14} Foster also relies on Watkins v. Collins, 111 Ohio St.3d 425, 2006-
Ohio-5082, 857 N.E.2d 78, in which we chose not to dismiss a habeas petition
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January Term, 2022
despite the petition’s failure to comply with the verification requirement. See id. at
¶ 37-38. Because the petition in that case included “a stipulation of the parties
agreeing to all the pertinent facts,” we refrained from invoking the general rule
requiring dismissal and reached the merits of the petition. Id. at ¶ 38. Foster says
that a similar result is appropriate here because Foley failed to file an answer or
otherwise appear and thereby admitted the facts alleged in the habeas petition.
{¶ 15} Foster’s analogy to Watkins is without merit. In Watkins, we
refrained from dismissing the petition because stipulated facts accompanied the
petition filed in that case. Id. at ¶ 27, 38. In contrast, Foster did not attach to his
petition any such substitute for the verification. Moreover, Foster’s premise is
incorrect: Foley could not be deemed to have admitted allegations in the petition,
because the court of appeals never ordered a return of writ.
{¶ 16} For the foregoing reasons, the court of appeals correctly found
Foster’s petition to be procedurally defective under R.C. 2969.25(C) and 2725.04.
Dismissal was therefore proper.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
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Ezra C. Foster, pro se.
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