Herrington v. Lazaroff

[Cite as Herrington v. Lazaroff, 2016-Ohio-7655.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
DAMOND D. HERRINGTON : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Petitioner : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 15CA102
ALLEN LAZAROFF, WARDEN :
:
Respondent : OPINION
CHARACTER OF PROCEEDING: Writ of Habeas Corpus, Richland County
Court of Common Pleas, Case No. 2008-
06-2074(A)
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: November 7, 2016
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JONATHAN R KHOURI DAMOND D. HERRINGTON PRO SE
Assistant Attorney General #A562-202
150 East Gay Street, 16th Fl. Mansfield Correctional Institution
Columbus, OH 43215 1150 North Main St.
Mansfield, Oh 44901
Richland County, Case No. 15CA102 2
Gwin, P.J.
{¶1} Petitioner Damond D. Herrington has filed a petition for Writ of Habeas
Corpus requesting his conviction for attempted aggravated murder be vacated on the
basis attempted murder is not a crime cognizable in Ohio. Respondent has filed a motion
to dismiss.
{¶2} R.C. 2969.25(A) governs the procedure for actions filed by inmates and
provides in relevant part, “(A) At the time that an inmate commences a civil action or
appeal against a government entity or employee, the inmate shall file with the court 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.”
{¶3} “Habeas corpus actions are “civil actions,” within meaning of statutes
imposing requirements for the filing of civil actions by inmates, such as requiring an
affidavit of civil litigation history. R.C. § 2969.21 et seq.” Fuqua v. Williams, 2003–Ohio–
5533, 100 Ohio St.3d 211, 797 N.E.2d 982, HN 1.
{¶4} The petition in this case did not contain an affidavit of prior civil actions.
{¶5} The Supreme Court has approved the dismissal of a habeas petition where
an inmate fails to file an affidavit in compliance with R.C. 2969.25. See Fuqua v. Williams,
2003–Ohio–5533, 100 Ohio St.3d 211, 797 N.E.2d 982, HN 1.
{¶6} Further, Relator has failed to comply with R.C. 2969.25(C)(1), which
mandates that he file a statement setting forth his inmate account balance “for each of
the preceding six months, as certified by the institutional cashier.” State ex rel. Jackson
v. Calabrese, 143 Ohio St.3d 409, 2015–Ohio–2918, 38 N.E.3d 880; State ex rel. Castro
v. Corrigan, 129 Ohio St.3d 342, 2011–Ohio–4059, 952 N.E.2d 497.
Richland County, Case No. 15CA102 3
{¶7} “‘The requirements of R.C. 2969.25 are mandatory, and failure to comply
with them subjects an inmate's action to dismissal.’” Boles v. Knab, 129 Ohio St.3d 222,
2011–Ohio–2859, 951 N.E.2d 389, ¶ 1, quoting State ex rel. White v. Bechtel, 99 Ohio
St.3d 11, 2003–Ohio–2262, 788 N.E.2d 634, ¶ 5; State ex rel. McGrath v. McDonnell, 126
Ohio St.3d 511, 2010–Ohio–4726, 935 N.E.2d 830, ¶ 1.
{¶8} After Respondent filed the motion to dismiss raising the petition’s defects,
Petitioner filed a motion to “expand the record” to include his inmate account information.
Petitioner refused to serve the motion to upon Respondent even after being given an
opportunity to perfect service. Further, the statute requires the affidavit be filed at the
time of commencement of the action. For these reasons, leave to supplement the petition
was denied.
Richland County, Case No. 15CA102 4
{¶9} Because Petitioner failed to file an affidavit of his prior civil actions at the
time the petition was filed and because Petitioner failed to file his inmate account
statement, we grant the motion to dismiss the petition.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur
WSG:clw 0929