Miller v. Bradshaw , 2011 Ohio 5380 ( 2011 )

[Cite as Miller v. Bradshaw, 2011-Ohio-5380.]
[Nunc pro tunc opinion. Please see original at 2011-Ohio-4972.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
WAYNE MILLER : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Petitioner : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2011-CA-79
WARDEN MARGERIT(SIC) :
BRADSHAW :
: OPINION
Respondent : NUNC PRO TUNC
:
CHARACTER OF PROCEEDING: Writ of Habeas Corpus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: October 19, 2011
APPEARANCES:
For Petitioner For Respondent
WAYNE MILLER PRO SE
P.O. Box 8107
Mansfield, OH 44901
[Cite as Miller v. Bradshaw, 2011-Ohio-5380.]
Gwin, P.J.
{1} Petitioner, Wayne Miller, has filed a petition for Writ of Habeas Corpus
alleging unlawful detention based upon his contention that the initial complaint in his
case lacked a proper determination of probable cause. 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 the
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.
{5} We further note a “Court of Appeals [is] required to dismiss [a] petition for
habeas corpus sua sponte, where defendant failed to verify the petition for habeas
Richland County, Case No. 2011-CA-79 3
corpus, support his complaint with an affidavit specifying the details of the claim, attach
a copy of commitment or cause of detention to petition, name the correct Respondent,
or attach an affidavit describing each civil action or appeal filed by the Relator within
previous five years in any state or federal court. R.C. 2725.04(B, D), 2969.25.” Melton v.
State 2002 WL 31040689 (Ohio App. 8 Dist.).
{6} The petition filed does not contain an affidavit detailing Petitioner's prior
civil actions.
{7} Petitioner's failure to include these items requires dismissal of this case.
By Gwin, P.J.,
Hoffman, J., and
Wise, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE
WSG:clw 0914
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
WAYNE MILLER :
:
Petitioner :
:
:
-vs- : JUDGMENT ENTRY
: NUNC PRO TUNC
WARDEN MARGERIT(SIC) :
BRADSHAW :
:
:
Respondent : CASE NO. 2011-CA-79
It has come to the court’s attention that the basis for Petitioner’s Complaint was
incorrectly listed in the original opinion. The court had multiple habeas corpus opinions
in process at the same time as the instant opinion and inadvertently transposed the
reasons for the petitions.
In order to correct our scrivener’s error, we reissue the opinion Nunc Pro Tunc to
accurately reflect the basis of Petitioner’s complaint. The correction is contained in
paragraph one of the first full page of the opinion.
In light of the foregoing, we hereby journalize the corrected opinion to speak Nunc
Pro Tunc for the court.
IT IS SO ORDERED.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE