Turner v. Coulson , 2015 Ohio 5341 ( 2015 )

[Cite as Turner v. Coulson, 2015-Ohio-5341.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
JOHN L. TURNER, JR., : PER CURIAM OPINION
Petitioner, :
CASE NO. 2015-L-087
- vs - :
CHARLES COULSON, LAKE COUNTY :
CHIEF PROSECUTOR, et al.,
:
Respondents.
:
Original Action for Writ of Habeas Corpus.
Judgment: Petition dismissed.
John L. Turner, Jr., pro se, c/o Lake County Jail, 104 East Erie Street, Painesville, OH
44077 (Petitioner).
Charles E. Coulson, Lake County Prosecutor, Lake County Administration Building,
105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Respondents).
PER CURIAM.
{¶1} Petitioner, John L. Turner, Jr., seeks a writ of habeas corpus against
respondents, Lake County Prosecutor Charles Coulson and Lake County Sheriff Daniel
Dunlap, for his immediate release from imprisonment at the Lake County Jail. Petitioner
filed his petition while his criminal case was pending in the Lake County Court of
Common Pleas. For the reasons that follow, this action is dismissed.
{¶2} Petitioner, acting pro se, filed his petition for a writ of habeas corpus on
August 5, 2015. He alleges he is being illegally held in jail by Sheriff Dunlap because
the recording of a 911 call made by a victim of his thefts, which petitioner needed to
refute the prosecution’s witnesses, was destroyed by the state. As a result, he alleges
his due process rights were violated. He also alleges the amount of bail set by the trial
court was excessive. Along with his petition, petitioner filed an excerpt of the indictment
in his criminal case, a police report, three witness statements, an affidavit of his prior
civil actions, and an affidavit purporting to comply with R.C. 2969.25(C), requesting the
waiver of prepayment of this court’s filing fee.
{¶3} Upon review of petitioner's petition, it is immediately apparent that it is
defective on its face. A court may sua sponte dismiss a petition for an extraordinary writ
for failure to state a claim upon which relief can be granted if the petition is frivolous or
the claimant obviously cannot prevail on the facts alleged in the petition. Hill v. Kelly,
11th Dist. Trumbull No. 2011-T-0094, 2011-Ohio-6341, ¶4, citing State ex rel.
Thompson v. Spon, 83 Ohio St.3d 551, 553 (1998); State ex rel. Bruggeman v.
Ingraham, 87 Ohio St.3d 230, 231 (1999).
{¶4} Petitioner’s petition fails to comply with several statutory requirements for
habeas relief. One of these requirements is that the petitioner must file all pertinent
commitment papers along with the petition. R.C. 2725.04(D). The Ohio Supreme Court
has held that the commitment papers are necessary for a complete understanding of
the petition. Bloss v. Rogers, 65 Ohio St.3d 145, 146 (1992). When a petition is
presented to a court that does not comply with R.C. 2725.04(D), there is no showing of
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how the commitment was procured, and there is nothing before the court on which to
make a determined judgment, except the bare allegations of the petition. Bloss, supra.
{¶5} In State ex rel. Cruz v. Sloan, 11th Dist. Ashtabula No. 2014-A-0032,
2014-Ohio-5180, ¶12, this court stated: “Relator failed to attach the sentencing entry or
any of his commitment papers. Without the full scope of relator’s commitment papers, it
would be impossible for us to fully understand the petition. Due to this defect, the
petition must be dismissed.” Because petitioner has failed to file any of his commitment
papers, his petition must be dismissed.
{¶6} Further, when an inmate initiates any civil action or appeal against a
government employee or entity, such as respondents, R.C. 2969.25(A) requires an
affidavit describing each of the inmate’s prior civil actions and civil appeals within the
last five years to be filed at the same time the civil action or appeal is filed. In addition,
the affidavit identifying the civil actions and appeals previously filed must include a “brief
description of the nature of the civil action or appeal” and “[t]he name of each party to
the civil action or appeal.” R.C. 2969.25(A)(1) and (3). “The requirements of R.C.
2969.25 are mandatory, and failure to comply with them subjects an inmate’s action to
dismissal.” State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262, ¶5. R.C.
2969.25(A) applies to habeas filings. Fuqua v. Williams, 100 Ohio St.3d 211, 2003-
Ohio-5533, ¶6-9. Belated attempts to file this affidavit cannot correct noncompliance
with the statute. Id. at ¶9. “Failure to timely file the required affidavit of prior civil actions
mandates dismissal of the petition. Cruz, supra, at ¶13, citing State ex rel. Washington
v. Ohio Adult Parole Auth., 87 Ohio St.3d 258, 259 (1999).
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{¶7} While petitioner has filed an affidavit of his prior civil actions, it is legally
insufficient for several reasons. First, it does not purport to list all of his prior appeals
within the last five years. Although petitioner concedes he has one appeal now pending
in the Ohio Supreme Court, he does not describe it or list the parties to it. He also
states he filed an appeal in this court, but he does not describe it or list the parties to it.
In addition, while petitioner concedes he has filed three habeas petitions in the Eighth
District, he does not provide a description of any of them or list the names of the parties
to those actions. Further, while he says he has filed three mandamus actions in the
Eighth District, he only describes one of them and does not state the names of the
parties involved in any of them. He states he filed two habeas cases in the Ninth
District, but, again, he does not provide a description of either or state the names of the
parties to those actions. Petitioner states he filed two habeas cases in this court, but,
again, he describes neither and does not list the parties involved in either. Petitioner
says he filed three other mandamus actions, but does not say where he filed them. Nor
does he describe any of them or list the parties involved. He also states he filed
multiple civil actions in Franklin, Lake, and/or Cuyahoga Counties, but he does not
describe any of them or list their parties. For this additional reason, the petition is
defective and must be dismissed.
{¶8} Moreover, R.C. 2969.25(C) requires an inmate, who files a civil action or
appeal against a government entity or employee, seeking waiver of the filing fee to file
an affidavit of indigency. Along with that affidavit, the inmate must also file a statement
of the inmate's account balance for each of the previous six months “as certified by the
institutional cashier.” Failure to file a certified statement of the inmate’s account
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balance at the time of the initial filing of the petition results in dismissal of the petition.
Hazel v. Knab, 130 Ohio St.3d 22, 2011-Ohio-4608, ¶1. In Hazel, supra, the Ohio
Supreme Court held that the error cannot be corrected after the initial filing and is fatal
to the petition.
{¶9} Here, while petitioner filed an affidavit listing his account balances for the
last six months, which was signed by a corrections officer, it was not certified by the
institutional cashier. For this additional reason, the petition is defective and must be
dismissed.
{¶10} Further, the petition did not satisfy the mandatory requirement of R.C.
2725.04 that the petition for a writ of habeas corpus be verified. Where a habeas
corpus petition does not contain any verification, it is subject to dismissal. Chari v.
Vore, 91 Ohio St.3d 323, 328 (2001); Jordan v. Johnson, 12th Dist. Madison No.
CA2013-03-007, 2013-Ohio-3679, ¶17. Because petitioner’s petition for a writ of
habeas corpus was not verified, it must be dismissed.
{¶11} In summary, petitioner failed to file any commitment papers with his
petition. He also failed to file a proper affidavit of prior civil actions and appeals along
with the petition. Further, he failed to file a certified inmate account statement.
Moreover, he failed to provide any verification for his petition. For any one or more of
these reasons, petitioner did not state a facially valid habeas-corpus claim, and he
obviously cannot prevail on his petition. Therefore, the petition must be and is hereby
dismissed.
{¶12} In any event, even if petitioner’s petition was not barred on procedural
grounds, the petition would still lack merit.
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{¶13} “Like other extraordinary-writ actions, habeas corpus is not available when
there is an adequate remedy in the ordinary course of law.” In re Goeller, 103 Ohio
St.3d 427, 2004-Ohio-5579, ¶6. Where the petitioner had an adequate remedy in the
ordinary course of the law by way of a direct appeal, he is not entitled to a writ of
habeas corpus. Robinson v. LaRose, 11th Dist. Trumbull No. 2015-T-0051, 2015-Ohio-
4323, ¶29.
{¶14} Here, petitioner alleges that the prosecutor stated in open court that when
she received the case on August 4, 2014, there was no recording of the 911 call in her
file. Based on this, petitioner argues the state destroyed the recording. Petitioner
argues he could have used the recording to refute the state’s witnesses and, because it
was destroyed, his due process rights have been violated. However, a review of the
docket in the underlying criminal case reveals that on September 16, 2015, petitioner
was found guilty by a jury of seven counts of felony theft and one count of intimidation,
and the court sentenced him to 8 and one-half years in prison. Thus, petitioner has an
adequate remedy in the ordinary course of the law via a direct appeal to assert his due-
process argument. As a result, this argument is not proper grounds for habeas relief.
{¶15} Further, because petitioner has already been convicted in the underlying
case, his excessive-bail argument is moot. State ex rel. Zayed v. McFaul, 8th Dist.
Cuyahoga No. 87110, 2005-Ohio-6974, ¶4-5.
{¶16} For the reasons stated in the opinion of this court, this action is dismissed.
TIMOTHY P. CANNON, P.J., DIANE V. GRENDELL, J., CYNTHIA WESTCOTT RICE,
J., concur.
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