Stewart v. State ( 2012 )

[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