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State ex rel. Hairston v. Franklin County Court of Common Pleas

Court of Appeals of Ohio, Tenth District

January 16, 2018

State ex rel. Rico Isaih Hairston, Petitioner,
v.
Franklin County Court of Common Pleas, Respondents.

         IN HABEAS CORPUS

          Rico Isaih Hairston, pro se.

          DECISION

          HORTON, J.

         {¶ 1} Relator, Rico Isaih Hairston, commenced this original action on July 12, 2017, requesting a writ of habeas corpus ordering his immediate release from custody. Almost one month later on August 1, 2017, petitioner filed a motion to appoint counsel and asserted he could not afford an attorney.

         {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, we referred this matter to a magistrate who issued a decision on August 23, 2017, including findings of fact and conclusions of law, which is appended hereto. The magistrate found that relator failed to comply with the mandatory requirements of R.C. 2969.25(C), in that petitioner did not pay the filing fee nor did he file a motion to proceed in forma pauperis with the attending required documentation, i.e., a statement of the amount in the inmate's account for each of the preceding six months as certified by the institutional cashier, and a statement of all other cash and things of value owned by the inmate. Therefore, the magistrate recommended that this court sua sponte dismiss this action and deny his motion to appoint counsel.

         {¶ 3} Relator has not filed an objection to the magistrate's decision. Instead, on August 30, 2017, relator filed a motion for leave to amend his complaint in an effort to comply with the mandatory requirements of R.C. 2969.25(C). We have held that a relator "cannot cure this deficiency by attempting to comply with the statutory requirements after the fact." State ex rel. Swain v. Ohio Adult Parole Auth., 10th Dist. No. 16AP-519, 2017-Ohio-517, ¶ 5, affd., State ex rel Swain v. Ohio Adult Parole Auth., Slip Opinion No. 2017-0332, 2017-Ohio-9175, holding that an inmate's belated attempt to comply with R.C. 2969.25(C) " 'does not excuse his noncompliance.' " Id. at ¶ 4, quoting Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, ¶ 9.

         {¶ 4} As such, finding no error of law or other defect on the face of the magistrate's decision, this court adopts the magistrate's decision as our own, including the findings of fact and conclusions of law. In accordance with the magistrate's decision, we sua sponte dismiss this action. Relator's remaining pending motions are thereby rendered moot. Costs are assessed against relator.

         Action sua sponte dismissed.

          SADLER and LUPER SCHUSTER, JJ., concur.

         APPENDIX

         MAGISTRATE'S DECISION

          STEPHANIE BISCA MAGISTRATE, Judge.

         {¶ 5} Petitioner, Rico Isaih Hairston, has filed this original action requesting this court issue a writ of habeas corpus ordering his immediate release from custody.

         Findings ...


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