Court of Appeals of Ohio, Seventh District, Mahoning
of Habeas Corpus
Celestino Penalosa, #60240-060, Core Civic, fka Northeast
Ohio Correctional Center, Pro se
Christopher Larose, Warden, Core Civic, fka Northeast Ohio
Correctional Center, Pro se.
BEFORE: Gene Donofrio, Cheryl L. Waite, Carol Ann Robb,
OPINION AND JUDGMENT ENTRY
Petitioner Celestino of Penalosa, proceeding on his own
behalf, has filed a petition for a writ of habeas corpus. The
petition alleges that he is being imprisoned and restrained
of his liberty at the Northeast Ohio Correctional Center
(NEOCC), operated by Core Civic, located at 2240 Hubbard Road
in Youngstown, Mahoning County, Ohio.
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 of law. In re Pianowski, 7th Dist. No. 03 MA
16, 2003-Ohio-3881; State ex rel. Pirman v. Money,
69 Ohio St.3d 591, 593, 635 N.E.2d 26 (1994). The burden is
on the Petitioner to establish a right to release.
Halleck v. Koloski, 4 Ohio St.2d 76, 212 N.E.2d 601
The habeas petition is deficient on several grounds. First,
the petition does not allege an unlawful restraint. 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 * * *." (Emphasis
added.) The petition states that he is "imprisoned and
restrained of his liberty." Petitioner does not claim
that he is being restrained unlawfully, and therefore, he has
failed to allege the first and primary element of a habeas
Second, Petitioner did not attach his commitment papers to
the petition. R.C. 2725.04 requires the following:
Application for the writ of habeas corpus shall be by
petition, signed and verified either by the party for whose
relief it is intended, or by some person for him, and shall
* * *
(D) A copy of the commitment or cause of detention of such
person shall be exhibited, if it can be procured without
impairing the efficiency of the remedy; or, if the
imprisonment or detention is without legal authority, such
fact must appear.
The Ohio Supreme Court has explained, "[t]hese
commitment papers are necessary for a complete understanding
of the petition. Without them, the petition is fatally
defective. When a petition is presented to a court that does
not comply with R.C. 2725.04(D), there is no showing of how
the commitment was procured and there is nothing before the
court on which to make a determined judgment except, of
course, the bare allegations of petitioner's
application." Bloss v. Rogers, 65 Ohio St.3d
145, 146, 602 N.E.2d 602 (1992). The papers must be included
with the petition and failure to file them cannot be cured by
filing them at some later point in the habeas proceedings.
Boyd v. Money, 82 Ohio St.3d 388, 389, 696 N.E.2d
568 (1998); Davis v. Banks, 7th Dist. No. 12 NO 397,
2013-Ohio-1852, ¶ 8.
Third, it does not contain an affidavit of prior civil
actions. When an inmate files a civil action 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. The Ohio
Supreme Court has held that the "requirements of R.C.
2969.25 are mandatory and failure to comply with them