State ex rel. Bradford v. Bowen (Slip Opinion) , 2022 Ohio 351 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Bradford v. Bowen, Slip Opinion No. 2022-Ohio-351.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2022-OHIO-351THE STATE EX REL . BRADFORD, APPELLANT , v. BOWEN, WARDEN, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Bradford v. Bowen, Slip Opinion No.
2022-Ohio-351.]
Habeas corpus—Court of appeals improperly considered an unauthenticated
document submitted in support of warden’s motion for summary
judgment— The reliability of documents purportedly printed from a website
is questionable unless verified by a sworn affidavit—Court of appeals’
dismissal of petition reversed and cause remanded.
(No. 2021-0952—Submitted December 7, 2021—Decided February 10, 2022.)
APPEAL from the Court of Appeals for Mahoning County, No. 20 MA 0025,
2021-Ohio-2336.
__________________
Per Curiam.
{¶ 1} Appellant, Pele K. Bradford, appeals of right from the judgment of
the Seventh District Court of Appeals dismissing his petition for a writ of habeas
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corpus. Because the court of appeals improperly considered an unauthenticated
document submitted by appellee, Warden Richard Bowen Jr., in support of a motion
for summary judgment, we reverse the judgment of the court of appeals and remand
the cause to that court to allow the writ and to require the warden to make a return.
Background
{¶ 2} In 2004, a jury found Bradford guilty of aggravated murder, having a
weapon while under a disability, and two firearm specifications for an incident that
occurred on January 2, 2004. The firearm specifications were merged for
sentencing. Bradford was sentenced to life in prison with parole eligibility after 20
years for aggravated murder, one year in prison for having a weapon while under a
disability, and three years in prison for the firearm specification. The prison terms
were ordered to be served consecutively. In 2007, he was convicted of escape, for
which he received an additional two-year prison sentence.
{¶ 3} In February 2020, Bradford filed a petition for a writ of habeas corpus
in the court of appeals alleging that his 2004 convictions are void because he was
17 years old at the time of the offenses and was not bound over from a juvenile
court. He relies on a form 1099-C he received in 2011 from the United States
Department of Education reporting the cancelation of debt on a student loan and a
notice he received from the Internal Revenue Service (“IRS”) in 2017, both of
which list his date of birth as November 25, 1986. He also purports to rely on a
“Christian Baptismal Certificate” that allegedly lists the same birthdate, but he did
not file a baptismal certificate with his petition.
{¶ 4} The warden filed a “motion to dismiss or, in the alternative, motion
for summary judgment,” arguing, among other things, that Bradford had not offered
“the best evidence to support his factual assertion of his birthdate.” The warden
attached to his motion a copy of a birth certificate that lists Bradford’s birthdate as
November 25, 1978. In his motion, the warden stated that he had “obtained a birth
certificate from Bradford’s file” and that he was “submit[ting] an authenticated copy
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thereof that establishes Bradford’s birth date several years prior to the birthdate
Bradford is claiming in his petition.” The document the warden filed with his motion
does not contain the original signature of the local registrar who certified the
document, nor does it include a seal. The warden did not authenticate the document
by affidavit; he simply attached it to his motion.
{¶ 5} Bradford filed a memorandum in opposition to the warden’s motion
as well as a motion to strike the document as improper summary-judgment evidence
under Civ.R. 56(C). The court of appeals denied the motion to strike and granted
summary judgment in the warden’s favor. The court found that “reasonable minds
can only conclude that [Bradford’s] birth certificate provides the more reliable and
credible evidence of his date of birth.” 2021-Ohio-2336, ¶ 8.
{¶ 6} Bradford has appealed of right to this court.
Analysis
{¶ 7} “A writ of habeas corpus lies in certain extraordinary circumstances
where there is an unlawful restraint of a person’s liberty and there is no adequate
remedy in the ordinary course of law.” Pegan v. Crawmer, 76 Ohio St.3d 97, 99,
666 N.E.2d 1091 (1996). “Habeas corpus will lie when a judgment is void due to
lack of jurisdiction.” Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806
N.E.2d 992, ¶ 8.
{¶ 8} Bradford’s claim—that the trial court did not have jurisdiction over
him, because he was not yet 18 years old at the time of the offenses and there was
no bindover from a juvenile court—is cognizable in habeas corpus. State ex rel.
Harris v. Anderson, 76 Ohio St.3d 193, 195-196, 667 N.E.2d 1 (1996); see also
R.C. 2152.12(H) (“Any prosecution that is had in a criminal court on the mistaken
belief that the person who is the subject of the case was eighteen years of age or
older at the time of the commission of the offense shall be deemed a nullity * * *”).
We review de novo the court of appeals’ decision granting the warden’s motion for
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summary judgment on Bradford’s claim. Smith v. McBride, 130 Ohio St.3d 51,
2011-Ohio-4674, 955 N.E.2d 954, ¶ 12.
{¶ 9} Bradford argues that the court of appeals erred by relying on the copy
of the birth certificate attached to the warden’s motion because that document was
not properly before the court under Civ.R. 56(C). That rule allows a court to render
summary judgment only if “the pleadings, depositions, answers to interrogatories,
written admissions, affidavits, transcripts of evidence, and written stipulations of
fact, if any, timely filed in the action, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.”
“When deciding a summary-judgment motion, it is generally error for a court to
rely on other types of evidence that has not been authenticated by way of an
attached affidavit.” State ex rel. Parker v. Russo, 158 Ohio St.3d 123, 2019-Ohio-
4420, 140 N.E.3d 602, ¶ 10. Indeed, Civ.R. 56(C) provides that “[n]o evidence or
stipulation may be considered except as stated in this rule.”
{¶ 10} Bradford is correct that the document the warden attached to his
motion does not comply with Civ.R. 56(C). The warden simply attached the
document to his motion without authenticating it by affidavit.
{¶ 11} We reject the warden’s argument that he did not need to authenticate
the document by affidavit, because it was self-authenticating under Evid.R. 902(4).
Because “Civ.R. 56(C) places strict limitations upon the type of documentary
evidence that a party may use in support of * * * summary judgment,” “[d]ocuments
merely attached to a summary judgment motion, even though allegedly certified as
official records, are not cognizable.” Hager v. Waste Technologies Indus., 7th Dist.
Columbiana No. 2000-CO-45, 2002-Ohio-3466, ¶ 92. Moreover, the warden has not
shown that the document he attached to his motion satisfies Evid.R. 902(4), which
provides that an official record is self-authenticating only if it bears an appropriate
certification—typically an original signature and a seal. The document the warden
submitted bears a copy of a purported certification and no seal—and thus does not
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satisfy Evid.R. 902(4). We therefore hold that the court of appeals erred when it
considered the document attached to the warden’s motion.
{¶ 12} The warden suggests that the court of appeals did not need to
consider the document attached to his motion, because it could have taken judicial
notice of Bradford’s birthdate as November 25, 1978, as indicated on the website
of the Department of Rehabilitation and Correction (“DRC”). The warden relies
on State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874
N.E.2d 516, ¶ 8, to argue that a court may take judicial notice of “a public record
available on the internet.” But Everhart merely recognizes that other courts have
taken judicial notice of court records that were available on the Internet. See id.Even if the record at issue here—Bradford’s birth certificate—were accessible on
the DRC’s website, Everhart does not support the warden’s broad assertion that a
court may take judicial notice of any public record that is available online. “It is
impossible to determine the credibility and reliability of documents purportedly
printed from a website. The reliability of such documents is questionable, unless
verified by a sworn affidavit.” Lebron v. A & A Safety, Inc., 8th Dist. Cuyahoga
No. 96976, 2012-Ohio-1637, ¶ 11. Moreover, it would have been improper for the
court of appeals to take judicial notice of the birthdate indicated on the DRC’s
website because Bradford’s birthdate is a fact that currently is “subject to
reasonable dispute,” Evid.R. 201(B).
{¶ 13} The warden also argues that it was proper for the court of appeals to
grant summary judgment because Bradford’s own evidence—the form 1099-C and
the IRS notice—does not satisfy Bradford’s burden of proof. It is true that “[i]n
habeas corpus cases, the burden of proof is on the petitioner to establish his right to
release.” Chari v. Vore, 91 Ohio St.3d 323, 325, 744 N.E.2d 763 (2001). This
includes the burden to “introduce evidence to overcome the presumption of
regularity that attaches to all court proceedings.” Id. But the question before us is
whether Bradford has stated a claim requiring the warden to make a return on the
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writ. Because Bradford has stated a cognizable habeas claim and the warden has
not made a return, Bradford does not yet need to prove his claim with evidence.
See Harris, 76 Ohio St.3d at 196, 667 N.E.2d 1.
{¶ 14} The warden also argues that the court of appeals properly dismissed
the petition because Bradford did not timely file copies of his commitment papers
under R.C. 2725.04(D) or an affidavit of prior civil actions under R.C. 2969.25(A).
The warden is mistaken. Bradford’s 2004 and 2007 sentencing entries were
attached to his petition, and Bradford filed an affidavit of prior civil actions the
same day that he filed his petition. These arguments therefore lack merit.
{¶ 15} Just as we did in Harris, we remand the cause “to the court of appeals
to allow the writ, require [the warden] to make a return, and determine whether a
bindover was required,” id. at 196. On remand, after the warden makes a return,
the court of appeals must weigh the parties’ evidence—and it may do so without an
evidentiary hearing. See Gaskins v. Shiplevy, 76 Ohio St.3d 380, 381-382, 667
N.E.2d 1194 (1996). In other cases, we have avoided the necessity of a remand by
treating a dispositive motion as a return and weighing the evidence ourselves. See,
e.g., Hammond v. Dallman, 63 Ohio St.3d 666, 667, 590 N.E.2d 744 (1992). That
is not an option here, however, because the warden’s motion “did not contain a
sworn statement concerning [Bradford’s] age at the time of the offenses or properly
authenticated documents establishing such age,” Harris at 196. Compare
Hammond at 667 (dispositive motion was “supported by the proper authenticated
documents”).
Conclusion
{¶ 16} We reverse the judgment of the court of appeals and remand the
cause to that court to allow the writ, to require the warden to make a return, and to
determine whether Bradford was under 18 years old on January 2, 2004.
Judgment reversed
and cause remanded.
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January Term, 2022
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
Pele K. Bradford, pro se.
Dave Yost, Attorney General, and William H. Lamb, Assistant Attorney
General, for appellee.
_________________
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