[Cite as Smith v. Buchanan,
2014-Ohio-359.]
STATE OF OHIO, NOBLE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
WILLIAM E. SMITH ) CASE NO. 13 NO 407
)
PETITIONER )
)
VS. ) OPINION AND
) JUDGMENT ENTRY
WARDEN TIMOTHY BUCHANAN )
NOBLE CORRECTIONAL )
INSTITUTION )
)
RESPONDENT )
CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus
JUDGMENT: Dismissed.
APPEARANCES:
For Petitioner: William E. Smith, Pro se
#273-391
Noble Correctional Institution
15708 McConnellsville Road
Caldwell, Ohio 43724
For Respondent: Atty. Michael DeWine
Attorney General of Ohio
Atty. Marc S. Davis
Assistant Ohio Attorney General
Criminal Justice Section
150 East Gay Street, 16th Floor
Columbus, Ohio 43215
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: January 27, 2014
[Cite as Smith v. Buchanan, 2014-Ohio-359.]
PER CURIAM.
{¶1} Petitioner William E. Smith is an inmate at the Noble Correctional
Institution in Noble County, Ohio. He has filed a petition for writ of habeas corpus
against Respondent Timothy Buchanan, the warden at that institution. Respondent
has filed a motion to dismiss the petition. Respondent's motion is hereby sustained
and the petition is dismissed.
Background
{¶2} On January 7, 1993, Petitioner was indicted by the Richland County
Grand Jury for one count of felonious assault in Common Pleas Case No. 92CR626.
Petitioner entered a no contest plea on January 27, 1993. The trial court entered a
finding of guilt and ordered a presentence investigation. The state agreed to
recommend that Petitioner be placed on probation. Petitioner failed to appear for the
presentence investigation and the trial court sentenced him to a term of incarceration
for an indefinite period of five to fifteen years on April 7, 1993. See State v. Smith,
5th Dist. Nos. 94-CA-62, 94-CA-64, 1995 WL 557408 (Aug. 28, 1995). On January
4, 1994, the trial court granted Petitioner's motion for shock probation and released
him from prison. After he violated the terms of his shock probation, his original
sentence was reimposed in July of 1994. State v. Smith, 5th Dist. No. 02CA67,
2003-Ohio-5592. The petition indicates that Petitioner was paroled again, that he
violated the terms of parole, and that he was recently ordered by the Ohio Adult
Parole Authority to serve 42 more months of his prison term. On October 24, 2013,
Petitioner filed this petition for writ of habeas corpus. Respondent filed a motion to
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dismiss on December 6, 2013. Petitioner filed a motion in opposition to the motion to
dismiss on December 20, 2013.
Analysis
{¶3} R.C. 2725.01 provides: “Whoever is unlawfully restrained of his liberty,
or entitled to the custody of another, of which custody such person is unlawfully
deprived, may prosecute a writ of habeas corpus, to inquire into the cause of such
imprisonment, restraint, or deprivation.” The writ of habeas corpus is an
extraordinary writ and will only be issued in certain circumstances of unlawful
restraint of a person's liberty where there is no adequate legal remedy at law, such
as a direct appeal or postconviction relief. In re Pianowski, 7th Dist. No. 03MA16,
2003-Ohio-3881, ¶3, citing State ex rel. Pirman v. Money,
69 Ohio St.3d 591, 593
635 N.E.2d 26 (1994). If a person is in custody by virtue of a judgment of a court of
record and the court had jurisdiction to render the judgment, the writ of habeas
corpus will not be allowed. Tucker v. Collins,
64 Ohio St.3d 77, 78,
591 N.E.2d 1241
(1992). The burden is on the petitioner to establish a right to release. Halleck v.
Koloski,
4 Ohio St.2d 76, 77,
212 N.E.2d 601 (1965); Yarbrough v. Maxwell,
174
Ohio St. 287, 288,
189 N.E.2d 136 (1963).
{¶4} Respondent has filed a Civ.R. 12(B)(6) motion to dismiss for failure to
state a claim. The purpose of such a motion is to test the sufficiency of the
complaint. State el rel. Boggs v. Springfield Local School Dist. Bd. of Ed., 72 Ohio
St.3d 94,
647 N.E.2d 788 (1995). In order for a case to be dismissed for failure to
state a claim, it must appear beyond doubt that, even assuming all factual allegations
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in the complaint are true, the nonmoving party can prove no set of facts that would
entitle that party to the relief requested. State ex rel. Pirman, supra; Keith v. Bobby,
117 Ohio St.3d 470,
2008-Ohio-1443,
884 N.E.2d 1067, ¶10. If the petition does not
meet the requirements of a properly filed petition for writ of habeas corpus, or fails to
state a facially viable claim, it may be dismissed on motion by the respondent or sua
sponte by the court. Flora v. State, 7th Dist. No. 04 BE 51,
2005-Ohio-2382, ¶5.
{¶5} As mentioned above, R.C. 2725.01, et seq., governs habeas filings,
and failure to satisfy these statutory requirements is generally fatal to the petition.
One of the requirements is that the petitioner must file all pertinent commitment
papers relevant to the arguments being raised in the petition. R.C. 2725.04(D). The
commitment papers are necessary for a complete understanding of the petition.
Bloss v. Rogers, 65 Ohio St.3d 145, 146,
602 N.E.2d 602 (1992). Failure to file the
necessary commitment papers requires dismissal of the petition.
Id. Petitioner's
arguments are all based on his presumption that he has spent too much time in
prison for a felonious assault conviction. To even begin to examine such an
argument, we would need evidence of the terms of his original sentence, and the
results of all the subsequent parole violations and the corresponding commitment
papers. That information is not included in this petition. For this reason, the petition
must be dismissed.
{¶6} When an inmate files a civil action or appeal against a government
entity or employee, R.C. 2969.25(A) requires the petitioner to file an affidavit with the
petition describing all civil actions and appeals he or she has filed in state or federal
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court within the past five years. One of the reasons for this requirement is to enable
the court to determine whether the current filing is malicious or vexatious. R.C.
2969.25(B). Compliance with R.C. 2969.25(A) is mandatory, and failure to satisfy the
statutory requirements is grounds for dismissal. State ex rel. Washington v. Ohio
Adult Parole Auth., 87 Ohio St.3d 258, 259,
719 N.E.2d 544 (1999).
{¶7} In Petitioner's motion in opposition to the motion to dismiss, he states
that he believes he filed the affidavit. It is not found in the record in this case.
Petitioner recently filed a document that purports to explain why he, in fact, did not
file the required affidavit. Belated attempts to file the affidavit or to correct
noncompliance with R.C. 2969.25(A) do not prevent dismissal of the habeas petition.
Fuqua v. Williams, 100 Ohio St.3d 211,
2003-Ohio-5533,
797 N.E.2d 982, ¶9. He
also averred that he filed no civil actions or appeals in the last five years. Oddly,
within the same document he refers to a case he recently filed in a federal district
court in West Virginia, and in his petition he also refers to a habeas action he filed in
2013 in the Fifth District Court of Appeals, which has already been dismissed by that
court. State ex rel. Smith v. Richards, 5th Dist. No. 13CA46,
2013-Ohio-4667.
Petitioner obviously had cases he was required to declare in an affidavit of prior civil
actions. His failure to include the affidavit as part of his petition for writ of habeas
corpus is yet one more reason to dismiss the petition.
{¶8} R.C. 2969.22 requires state inmates to pay in advance the full filing
fees in civil actions and appeals commenced in state court (other than the Court of
Claims). In order to obtain a waiver of the requirement to prepay filing fees, the
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inmate must comply with R.C. 2969.25(C) and file a fee waiver request affidavit, an
inmate account statement that is certified by the institutional cashier, and an asset
disclosure statement. The requirements of R.C. 2969.25(C) are mandatory. Failure
to comply requires dismissal of the petition. State ex rel. Alford v. Winters, 80 Ohio
St.3d 285,
685 N.E.2d 1242 (1997). Furthermore, the documents must be part of the
initial filing of the petition and cannot later be added or amended to the petition.
Hazel v. Knab,
130 Ohio St.3d 22,
2011-Ohio-4608,
955 N.E.2d 378, ¶1
(“subsequent filing of the statement [does] not cure the defect.”). Petitioner has not
paid the filing fee in full and has not properly requested a waiver of the filing fee.
More specifically, he did not file a statement setting forth the balance in his inmate
account for each of the preceding six months, certified by the institutional cashier.
R.C. 2969.25(C)(1). This petition for writ of habeas corpus does not meet the
requirements of R.C. 2969.25(C). For this third reason, the petition also must be
dismissed.
{¶9} We cannot reach any of the substantive arguments in the petition due
to the many procedural deficiencies cited above.
Conclusion
{¶10} We hereby sustain Respondent's motion to dismiss the petition for writ
of habeas corpus. Petitioner committed a number of procedural errors that mandate
dismissal of the petition. He failed to file the pertinent commitment papers; failed to
file an affidavit of prior civil actions; and failed to file his inmate account statement
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with his affidavit of indigency. For all the aforementioned reasons, we dismiss the
petition for habeas corpus.
{¶11} Costs taxed against Petitioner. Final order. Clerk to serve notice as
provided by the Civil Rules.
Waite, J., concurs.
Vukovich, J., concurs.
DeGenaro, P.J., concurs.
