State ex rel. Miller v. May, Warden , 2019 Ohio 4065 ( 2019 )

[Cite as State ex rel. Miller v. May, Warden, 2019-Ohio-4065.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE ex rel. JERRY MILLER JUDGES:
Hon. John W. Wise, P. J.
Petitioner Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 19 CA 56
HAROLD MAY, WARDEN
Respondent OPINION
CHARACTER OF PROCEEDING: Writ of Habeas Corpus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: October 2, 2019
APPEARANCES:
For Petitioner For Respondent
JERRY MILLER, PRO SE DAVE YOST
Inmate #487-391 ATTORNEY GENERAL
RICHLAND CORR. INSTITUTION JERRI L. FOSNAUGHT
P. O. Box 8107 ASSISTANT ATTORNEY GENERAL
Mansfield, Ohio 44901 150 East Gay Street, 16th Floor
Columbus, Ohio 43215
Richland County, Case No. 19 CA 56 2
Wise, P. J.
{¶1} On June 19, 2019, Jerry Miller filed a petition for writ of habeas corpus on
the basis that his prison sentence expired and he is being held by the state of Ohio
without legal authority to do so. The Ohio Attorney General, on behalf of Respondent,
Harold May, moves to dismiss Mr. Miller’s petition under Civ.R. 12(B)(6) or, in the
alternative, moves for summary judgment under Civ.R. 56. The Court grants the attorney
general’s motion to dismiss.
{¶2} The purpose of a Civ.R. 12(B)(6) motion is to test the sufficiency of the
complaint. State ex rel. Boggs v. Springfield Loc. School Dist. Bd. of Edn., 72 Ohio St.3d
94, 95, 647 N.E.2d 788 (1995). In order for a case to be dismissed for failure to state a
claim, it must appear beyond doubt that, even assuming all factual allegations in the
complaint are true, the nonmoving party can prove no set of facts that would entitle that
party to the relief requested. Keith v. Bobby, 117 Ohio St.3d 470, 2008-Ohio-1443, 884
N.E.2d 1067, ¶10. If a petition does not satisfy the requirements for a properly filed
petition for writ of habeas corpus or does not present a facially viable claim, it may be
dismissed on motion by the respondent or sua sponte by the Court. Flora v. State, 7th
Dist. Belmont No. 04 BE 51, 2005-Ohio-2383, ¶5.
{¶3} Here, Mr. Miller’s petition does not meet the statutory filing requirements of
R.C. 2725.04(D), which require a petitioner to file all pertinent commitment papers
relating to the petition. In Bloss v. Rogers, 65 Ohio St.3d 145, 146, 602 N.E.2d 602(1992), the Ohio Supreme Court explained:
These commitment papers are necessary for a complete
understanding of the petition. Without them, the petition is fatally defective.
Richland County, Case No. 19 CA 56 3
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.
{¶4} (Citation omitted.)
{¶5} Thus, to “state a claim for habeas corpus relief and satisfy the Revised Code
filing requirements, [the petitioner] need[s] to submit complete records of his
incarceration and releases.” State ex rel. Cannon v. Mohr, 155 Ohio St.3d 213, 2018-
Ohio-4184, 120 N.E.3d 776, ¶10. Failure to attach the relevant commitment papers is
fatally defective to a petition for writ of habeas corpus. Bloss at 146.
{¶6} In the present matter, Mr. Miller attached sentencing judgment entries for
Case Nos. 26257, B-850189, and 84-CR-1853. Although Mr. Miller references a federal
sentence in his petition and the Termination Entry dated July 17, 1986 also references a
sentence imposed by a federal court, Mr. Miller did not attach any documentation
regarding his federal sentence. Further, it appears Mr. Miller had parole revocations;
however, he failed to attach any of his parole-revocation records. Therefore, because
Mr. Miller did not satisfy the statutory requirements of R.C. 2725.04(D), it is impossible
to determine how much time was left on his sentence. Failure to attach all the pertinent
commitment papers, including those concerning parole-revocation proceedings, results
in dismissal. See State ex rel. Crigger v. Ohio Adult Parole Auth., 82 Ohio St.3d 270,
272, 695 N.E.2d 254 (1998).
{¶7} For the reasons set forth above, we grant the attorney general’s Motion to
Dismiss under Civ.R. 12(B)(6). Mr. Miller’s petition for writ of habeas corpus is dismissed.
Richland County, Case No. 19 CA 56 4
{¶8} The clerk of courts is hereby directed to serve upon all parties not in default
notice of this judgment and its date of entry upon the journal. See Civ.R. 58(B).
By: Wise, P. J.
Delaney, J., and
Baldwin, J., concur.
JWW/d 0924