Court of Appeals of Ohio, Eighth District, Cuyahoga
LUIS A. CRUZ, RELATOR
SHERIFF CLIFFORD PINKNEY, RESPONDENT
Habeas Corpus Motion No. 505350 Order No. 506597.
RELATOR Luis A. Cruz, pro se Inmate No. 207959 Cuyahoga
County Correctional Center
ATTORNEYS FOR RESPONDENT Michael C. O'Malley Cuyahoga
County Prosecutor By: Mary M. Dyczek Assistant County
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., JUDGE
On February 13, 2017, the petitioner, Luis Cruz, commenced
this habeas corpus action against the respondent, Sheriff
Clifford Pinkney, to have bond reset in the underlying case,
State v. Cruz, Cuyahoga C.P. No.
CR-16-604108-A. On March 13, 2017, the respondent moved
for summary judgment on the grounds of pleading deficiencies
and adequate remedy at law. Cruz filed a response on March
21, 2017. For the following reasons, this court grants the
respondent's motion for summary judgment and denies the
application for a writ of habeas corpus.
Cruz's petition is fatally defective. R.C. 2725.04(D)
requires a habeas corpus petitioner to include a copy of the
commitment or cause of detention. Cruz attached a copy of his
docket. This is insufficient. Compliance with R.C. 2725.04(D)
requires attachment of the journal entry causing
petitioner's detention, and a copy of the docket is not
sufficient. Wilson v. Kochevar, 8th Dist. Cuyahoga
No. 84516, 2004-Ohio-2984.
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 * * *." The Supreme Court of
Ohio then reversed the court of appeals' granting of the
writ and awarding of relief and held that the cause should
have been summarily dismissed because the petition was
procedurally defective. Cruz attached "affidavits"
with his petition at the end of which he stated that his
statements were made under penalty of perjury and that the
foregoing was true and correct to the best of his knowledge
and belief. However, they were not notarized. Therefore, the
acknowledgment is insufficient to be a proper verification or
affidavit under Ohio law. Griffin v. McFaul, 116
Ohio St.3d 30, 2007-Ohio-5506, 876 N.E.2d 527.
Cruz has similarly failed to comply with R.C. 2969.25, which
requires an affidavit that describes each civil action or
appeal filed by the relator within the previous five years in
any state or federal court. Although he includes an
"affidavit of prior civil action, " it is not
notarized. This failure to comply with R.C. 2969.25 warrants
dismissal of the complaint for a writ of mandamus. State
ex rel. Zanders v. Ohio Parole Bd, 82 Ohio St.3d 421,
1998-Ohio-218, 696 N.E.2d 594, and State ex rel. Alford
v. Winters, 80 Ohio St.3d 285, 1997-Ohio-117, 685 N.E.2d
1242. He also did not comply with R.C. 2969.25(C), which
requires that an inmate file a certified statement from his
prison cashier setting forth the balance in his private
account for each of the preceding six months with a poverty
affidavit. He submitted his sheriffs office trust account,
but the supporting affidavit was not notarized. This also is
sufficient reason to deny the mandamus, deny indigency
status, and assess costs against the relator. State ex
rel. Pamer v. Collier, 108 Ohio St.3d 492,
2006-Ohio-1507, 844 N.E.2d 842; State ex rel. Hunter v.
Cuyahoga Cty. Court of Common Pleas, 88 Ohio St.3d 176,
2000-Ohio-285, 724 N.E.2d 420; and Hazel v. Knab,
130 Ohio St.3d 22, 2011-Ohio-4608, 955 N.E.2d 378 - the
defect may not be cured by subsequent filings.
Finally, Cruz is pursuing an adequate remedy at law. R.C.
2937.222(D) provides that a trial court may deny bail for
certain serious offenses, such as a first-degree felony,
after a hearing in which the defendant is provided with full
due process protections. If the court denies bond after such
a hearing, then the defendant's remedy is an appeal. Cruz
is pursuing this remedy by filing a motion to reduce or
reinstate bond. Habeas corpus, like other extraordinary
writ actions, is not available where there is an adequate
remedy at law. Drake v. Tyson-Parker, 101 Ohio St.3d
210, 2004-Ohio-711, 803 N.E.2d 811.
Accordingly, this court grants the respondent's motion
for summary judgment and denies the petition for a writ of
habeas corpus. Relator to pay costs. This court directs the
clerk of courts to serve all parties notice of this judgment
and its date of entry upon the journal as required by Civ.R.
T. GALLAGHER, P.J., and ANITA ...