2016 OHIO 8038 - Zayas v. State

[Cite as Zayas v. State,

2016-Ohio-8038

.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

JOSE M. ZAYAS                                 )    CASE NO. 16 MA 0137
                                              )
        PETITIONER                            )
                                              )
VS.                                           )    OPINION AND
                                              )    JUDGMENT ENTRY
STATE OF OHIO                                 )
                                              )
        RESPONDENT                            )

CHARACTER OF PROCEEDINGS:                          Petition for Writ of Habeas Corpus

JUDGMENT:                                          Dismissed.

APPEARANCES:

For Petitioner:                                    Jose M. Zayas, Pro se
                                                   Jail I.D. No. 54065
                                                   Mahoning County Justice Center
                                                   110 Fifth Avenue
                                                   Youngstown, Ohio 44503


For Respondent:                                    Atty. Paul J. Gains
                                                   Mahoning County Prosecutor
                                                   Atty. Ralph M. Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 West Boardman Street, 6th Floor
                                                   Youngstown, Ohio 44503

JUDGES:

Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Hon. Carol Ann Robb
                                                   Dated: December 7, 2016
[Cite as Zayas v. State,

2016-Ohio-8038

.]
PER CURIAM.


        {¶1}     Petitioner Jose Zayas, proceeding on his own behalf, filed a writ of

habeas corpus seeking immediate release from incarceration at the Mahoning

County Jail in Youngstown, Ohio. Respondent State of Ohio has filed a motion to

dismiss.

        {¶2}     According to his petition, Petitioner was “illegally arrested without

warrant” on August 6, 2016, by Youngstown Police and taken to the Mahoning

County Jail pending action by the Commonwealth of Kentucky. Petitioner alleges

that he has been held in the jail for 24 days without appearing before a judge or

magistrate in violation of the Uniform Extradition Act.

        {¶3}     Upon review, it is apparent that the petition must be dismissed for two

reasons.       The first is that when an inmate files a civil action filed against a

governmental entity or employee, R.C. 2969.25(A) requires the petitioner to file an

affidavit with the petition describing all civil actions and appeals that petitioner has

filed in state or federal court within the past five years. Petitioner has not included

the required affidavit. The Ohio Supreme Court has held that the “requirements of

R.C. 2969.25 are mandatory and failure to comply with them requires dismissal of an

inmate’s complaint.” State ex rel. Hall v. Mohr,

140 Ohio St.3d 297

2014-Ohio-3735

17 N.E.3d 581, ¶ 4

. See also Fuqua v. Williams,

100 Ohio St.3d 211

, 2003-Ohio-

5533,

797 N.E.2d 982

, ¶ 6-9 (“A habeas corpus action is a civil action and therefore

the provisions of R.C. 2969.21 through 2969.27 are applicable to such action.”

Id.

 at

syllabus).
                                                                                    -2-

       {¶4}    The second reason the petition fails goes to the underlying basis of the

petition itself:   the purported delay in extradition proceedings.    Respondent has

attached to its motion to dismiss a copy of an indictment issued by the Mahoning

County Grand Jury subsequent to Petitioner’s arrest reflecting that Petitioner has

been charged in this state with carrying a concealed weapon (fourth-degree felony)

and having a weapon while under disability (third-degree felony).        R.C. 2963.17

addresses this type of situation and provides that the state may hold a fugitive

indicted in this state or surrender him:

       If a criminal prosecution has been instituted under the laws of this state

       against a person sought by another state under sections 2963.01 to

       2963.27, inclusive, of the Revised Code, and is still pending, the

       governor may surrender him on demand of the executive authority of

       another state or hold him until he has been tried and discharged or

       convicted and punished in this state. (Emphasis added.)

       {¶5}    Based on the foregoing, we dismiss the petition for a writ of habeas

corpus.

       {¶6}    Costs taxed against Petitioner. Final order. Clerk to serve notice as

provided by the Civil Rules.

Waite, J., concurs.

DeGenaro, J., concurs.

Robb, J., concurs.