Smith v. Sheldon

[Cite as Smith v. Sheldon, 2018-Ohio-468.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
EDDIE LEE SMITH JUDGES:
Hon. John W. Wise, P. J.
Petitioner Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 17 CA 54
EDWARD SHELDON, WARDEN
Respondent OPINION
CHARACTER OF PROCEEDING: Writ of Habeas Corpus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: February 5, 2018
APPEARANCES:
For Petitioner For Respondent
EDDIE LEE SMITH JERRI FOSNAUGHT
PRO SE ASSISTANT ATTORNEY GENERAL
1150 North Main Street 150 East Gay Street, 16th Floor
Mansfield, Ohio 44901 Columbus, Ohio 43215
Richland County, Case No. 17 CA 54 2
Wise, J.
{¶1} Petitioner, Eddie Lee Smith, has filed a petition for writ of habeas corpus
claiming Petitioner is being held for convictions of crimes with which he was not charged.
He also raises claims the trial court lacked subject matter jurisdiction. Respondent has
filed a motion to dismiss.
{¶2} Petitioner has failed to attach all commitment papers as required. Revised
Code 2725.04(D) provides, “(D) 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.” Petitioner has attached only a portion of the commitment papers in Case
Number CR 2015 12 3774, and Petitioner has not attached any commitment papers from
Case Number 2015 09 2837.
{¶3} A “[h]abeas 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.”
Boyd v. Money, 82 Ohio St. 3d 388, 1998 -Ohio- 221, 696 N.E.2d 568.
{¶4} 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.”
Richland County, Case No. 17 CA 54 3
{¶5} “[U]nder Ohio law, state writ actions are civil actions. See Henderson v.
James (1895), 52 Ohio St. 242, 259, 39 N.E. 805” Fuqua v. Williams, 100 Ohio St. 3d 211,
2003–Ohio–5533, 797 N.E.2d 982, ¶ 7 (2003).
{¶6} The petition in this case did not contain an affidavit of prior civil actions.
{¶7} 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.
{¶8} Finally, Petitioner has failed to include an affidavit of verification. “R.C.
2725.04 further requires the petition to be verified. In Chari v. Vore, 91 Ohio St. 3d 323,
2001–Ohio–49, 744 N.E.2d 763, the Supreme Court of Ohio ruled: “ ‘Verification’ means
a ‘formal declaration made in the presence of an authorized officer, such as a notary
public, by which one swears to the truth of the statement in the document.’ Garner, Black's
Law Dictionary (7 Ed.1999) 1556 * * *.” Cruz v. Pinkney, 8th Dist. Cuyahoga No. 105454,
2017-Ohio-4308, ¶ 3.
{¶9} Because Petitioner has failed to attach all necessary commitment papers
failed to supply the affidavit of prior civil actions, and failed to file an affidavit of verification,
the petition is dismissed.
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
JWW/d 0126