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In re Anderson

Court of Appeals of Ohio, Seventh District, Mahoning

July 24, 2018

IN RE: CORTEZ D. OF ANDERSON, Petitioner,
v.
CHRISTOPHER LAROSE, WARDEN, Respondent.

          Petition for Writ of Habeas Corpus

          Cortez D. Anderson, CoreCivic, fka Northeast Ohio Correctional Center, Pro se.

          Christopher Larose, Warden, CoreCivic, fka Northeast Ohio Correctional Center, Pro se.

          BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.

          OPINION AND JUDGMENT ENTRY

          PER CURIAM.

         Petitioner Cortez D. of Anderson, 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 CoreCivic, 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 (1965).

         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 action.

         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 specify:
* * *
(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 requires dismissal ...


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