Burns v. Delaware Cty. , 2011 Ohio 5642 ( 2011 )

[Cite as Burns v. Delaware Cty., 2011-Ohio-5642.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
KEVIN D. BURNS, : Hon. W. Scott Gwin, P.J.
: Hon. Julie A. Edwards, J.
Petitioner, : Hon. Patricia A. Delaney, J.
:
v. :
: Case No. 2011CAD060060
STATE OF OHIO :
DELAWARE COUNTY, :
: OPINION
Respondent.
CHARACTER OF PROCEEDING: Writ of Habeas Corpus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: October 31, 2011
APPEARANCES:
For Petitioner For Respondent
KEVIN D. BURNS PRO SE CAROL HAMILTON O'BRIEN
Delaware County Jail Prosecuting Attorney
844 US RT. 42 140 N. Sandusky St., 3rd Fl.
Delaware, OH 43015 Delaware, OH 43015
[Cite as Burns v. Delaware Cty., 2011-Ohio-5642.]
Gwin, P.J.
{¶ 1} Petitioner, Kevin D. Burns, has filed a petition for Writ of Habeas Corpus
alleging unlawful detention based upon his contention that Union County, has failed to
act on its probation holder within a reasonable amount of time. We find it unnecessary
to address the claims raised because Petitioner has failed to comply with the procedural
requirements for a habeas petition.
{¶ 2} A review of the complaint reveals Petitioner has failed to attach the
necessary commitment papers in compliance with R.C. 2725.04(D).
{¶ 3} The Supreme Court has held failure to comply with this requirement is a
fatal defect which cannot be cured, “[C]ommitment 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, 602 N.E.2d 602. See
also, Boyd v. Money, 82 Ohio St.3d 388, wherein the Supreme Court held, “Habeas
corpus petitioner's failure to attach pertinent commitment papers to his petition rendered
petition fatally defective, and petitioner's subsequent attachment of commitment papers
to his post-judgment motion did not cure the defect.” R.C. § 2725.04(D).
{¶ 4} We find failure to include all pertinent entries has made a complete
understanding of the Petition impossible.
Delaware County, Case No. 2011CAD060060 3
{¶ 5} Further, R.C. 2725.04 requires that petitions for habeas corpus be verified.
The instant petition does not contain an affidavit of verity. The Supreme Court of Ohio
has consistently upheld the dismissal of habeas corpus petitions which are not verified.
Hughley v. Saunders (2009), 123 Ohio St.3d 90, 2009-Ohio-4089, 914 N.E.2d 370.
{¶ 6} Finally, Petitioner has named “the State of Ohio, Delaware County” as the
Respondent which is improper. The proper Respondent is the person who is directly
responsible for keeping the petitioner in custody. Davis v. Wilson (2003), 100 Ohio
St.3d 269, 270, 798 N.E.2d 379, 380.
{¶ 7} For these reasons, Petitioner’s petition for writ of habeas corpus is
dismissed.
By Gwin, P.J.,
Edwards, J., and
Delaney, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JULIE A. EDWARDS
_________________________________
HON. PATRICIA A. DELANEY
WSG:clw 0906
[Cite as Burns v. Delaware Cty., 2011-Ohio-5642.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
KEVIN D. BURNS, :
:
Petitioner, :
:
:
v. : JUDGMENT ENTRY
:
STATE OF OHIO
DELAWARE COUNTY, :
:
:
Respondent. : CASE NO. 2011CAD060060
For the reasons stated in our accompanying Memorandum-Opinion, Petitioner’s
petition for writ of habeas corpus is dismissed.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JULIE A. EDWARDS
_________________________________
HON. PATRICIA A. DELANEY