Court of Appeals of Ohio, Eighth District, Cuyahoga
Habeas Corpus Motion No. 502464 Order No. 505255
PETITIONER Johnathan Galderos Lopez, pro se.
ATTORNEYS FOR RESPONDENT Michael C. O'Malley Cuyahoga
County Prosecutor By: Anthony Thomas Miranda Assistant County
JOURNAL ENTRY AND OPINION
A. JONES, SR., P.J.
Johnathan Galderos Lopez has filed a petition for a
"writ of habeas corpus ad prosequendum." Lopez
alleges that there exists, against him, pending criminal
charges within Cuyahoga County for the offenses of burglary,
breaking and entering, and petty theft. Specifically, Lopez
alleges that the pending charges are restricting programs
available at a Florida correctional institution, where he is
currently incarcerated, and he requests "final
disposition" of the criminal charges pending in Cuyahoga
County. The Cuyahoga County prosecutor has filed a motion to
dismiss, which we grant for the following reasons.
Initially, we find that Lopez has failed to state a claim
upon which relief can be granted. For a court to grant a
motion to dismiss for failure to state a claim, it must
appear beyond doubt that the petitioner can prove no set of
facts in support of the claim that would entitle relief.
Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843,
23 L.Ed.2d 404 (1969); Mitchell v. Lawson Milk Co.,
40 Ohio St.3d 190, 532 N.E.2d 753 (1988); O'Brien v.
Univ. Community Tenants Union, 42 Ohio St.2d 242, 327
N.E.2d 753 (1975).
A "writ of habeas corpus ad prosequendum" is
employed by the government of the United States to secure the
presence in federal court of a prisoner incarcerated by a
state. United States v. Mauro, 436 U.S. 340, 98
S.Ct. 1834, 56 L.Ed.2d 329 (1978). No request has been made
by the United States to transfer Lopez for prosecution within
a federal court. Also, Lopez's petition fails to state a
claim upon which relief can be granted because this court
possesses the necessary original jurisdiction to hear only
five types of writs: 1) quo warranto; 2) mandamus; 3) habeas
corpus; 4) prohibition; and 5) procedendo. See Ohio
Constitution, Article IV, Section 3(B)(1). A writ of
"habeas corpus ad prosequendum" is not equivalent
to a writ of habeas corpus as contained within R.C. Chapter
2725. In addition, the motion to dismiss clearly provides
that there exists no active detainer or pending untried
indictment, information or complaint against Lopez within
Cuyahoga County. Compare In re Petition of Brown, 49
Ohio St.3d 222, 551 N.E.2d 954 (1990); State v. Dye,
3d Dist. Crawford No. 3-92-47, 1993 Ohio App. LEXIS 2520 (May
Even if this court were to treat Lopez's petition as a
request for a writ of habeas corpus pursuant to R.C. Chapter
2725, we would still be required to dismiss the petition as a
result of numerous procedural defects. Initially, we find
that Lopez has failed to properly caption his petition by not
including "the names and addresses of all of the
parties" in the caption of the petition as required by
Civ.R. 10(A). State ex rel. Sherrills v. State, 91
Ohio St.3d 133, 742 N.E.2d 651 (2001).
Lopez has also failed to comply with the mandatory
requirement of R.C. 2969.25(A). Pursuant to R.C. 2969.25(A),
an inmate that commences a civil action against a government
entity or government employee must file a sworn affidavit
that contains a description of each civil action or appeal of
a civil action filed in the previous five years in any
federal or state court. State ex rel. McGrath v.
McDonnell, 126 Ohio St.3d 511, 2010-Ohio-4726, 935
In addition, Lopez has failed to attach a copy of the
commitment or cause of his detention, a violation of R.C.
2725.04(D). The failure to attach any commitment papers is
fatal to a petition for habeas corpus. State ex rel.
McCuller v. Callahan, 98 Ohio St.3d 307, 2003-Ohio-858,
784 N.E.2d 108; State ex rel. Johnson v. Ohio Dept. of
Rehab. & Corr., 95 Ohio St.3d 70, 765 N.E.2d 356
(2002). Finally, Lopez did not comply with the mandatory
verification requirement of R.C. 2725.04. Malone v.
Lane, 96 Ohio St.3d 415, 2002-Ohio-4908, 775 N.E.2d 527;
Chari v. Vore, 91 Ohio St.3d 323, 744 N.E.2d 763
Accordingly, we grant the motion to dismiss. Costs to Lopez.
The court directs the clerk of courts to serve all parties
with notice of this judgment and the date of entry upon the
journal as required by Civ.R. 58(B).