Zayas v. State , 2016 Ohio 8038 ( 2016 )

[Cite as Zayas v. State, 2016-Ohio-8038.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
JOSE M. ZAYAS ) CASE NO. 16 MA 0137
)
PETITIONER )
)
VS. ) OPINION AND
) JUDGMENT ENTRY
STATE OF OHIO )
)
RESPONDENT )
CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus
JUDGMENT: Dismissed.
APPEARANCES:
For Petitioner: Jose M. Zayas, Pro se
Jail I.D. No. 54065
Mahoning County Justice Center
110 Fifth Avenue
Youngstown, Ohio 44503
For Respondent: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Hon. Carol Ann Robb
Dated: December 7, 2016
[Cite as Zayas v. State, 2016-Ohio-8038.]
PER CURIAM.
{¶1} Petitioner Jose Zayas, proceeding on his own behalf, filed a writ of
habeas corpus seeking immediate release from incarceration at the Mahoning
County Jail in Youngstown, Ohio. Respondent State of Ohio has filed a motion to
dismiss.
{¶2} According to his petition, Petitioner was “illegally arrested without
warrant” on August 6, 2016, by Youngstown Police and taken to the Mahoning
County Jail pending action by the Commonwealth of Kentucky. Petitioner alleges
that he has been held in the jail for 24 days without appearing before a judge or
magistrate in violation of the Uniform Extradition Act.
{¶3} Upon review, it is apparent that the petition must be dismissed for two
reasons. The first is that when an inmate files a civil action filed 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. Petitioner has not included
the required affidavit. The Ohio Supreme Court has held that the “requirements of
R.C. 2969.25 are mandatory and failure to comply with them requires dismissal of an
inmate’s complaint.” State ex rel. Hall v. Mohr, 140 Ohio St. 3d 297, 2014-Ohio-3735,
17 N.E.3d 581, ¶ 4. See also Fuqua v. Williams, 100 Ohio St. 3d 211, 2003-Ohio-
5533, 797 N.E.2d 982, ¶ 6-9 (“A habeas corpus action is a civil action and therefore
the provisions of R.C. 2969.21 through 2969.27 are applicable to such action.” Id. at
syllabus).
 -2-
{¶4} The second reason the petition fails goes to the underlying basis of the
petition itself: the purported delay in extradition proceedings. Respondent has
attached to its motion to dismiss a copy of an indictment issued by the Mahoning
County Grand Jury subsequent to Petitioner’s arrest reflecting that Petitioner has
been charged in this state with carrying a concealed weapon (fourth-degree felony)
and having a weapon while under disability (third-degree felony). R.C. 2963.17
addresses this type of situation and provides that the state may hold a fugitive
indicted in this state or surrender him:
If a criminal prosecution has been instituted under the laws of this state
against a person sought by another state under sections 2963.01 to
2963.27, inclusive, of the Revised Code, and is still pending, the
governor may surrender him on demand of the executive authority of
another state or hold him until he has been tried and discharged or
convicted and punished in this state. (Emphasis added.)
{¶5} Based on the foregoing, we dismiss the petition for a writ of habeas
corpus.
{¶6} Costs taxed against Petitioner. Final order. Clerk to serve notice as
provided by the Civil Rules.
Waite, J., concurs.
DeGenaro, J., concurs.
Robb, J., concurs.