[Cite as In re Smith, 2005-Ohio-2997.]
COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 86452 IN THE MATTER OF: KIMBERLY SMITH Relator vs. FRANK SHEWALTER, WARDEN, Respondent DATE OF JOURNALIZATION: CHARACTER OF PROCEEDINGS: JUDGMENT: : : : : : : : : : : ORIGINAL ACTION JOURNAL ENTRY AND OPINION
JUNE 10, 2005 WRIT OF HABEAS CORPUS Dismissed. Order No. 372338
APPEARANCES: For Relator: KIMBERLY SMITH, pro se Inmate No. 60501 Northeast Pre-Release Center 2675 East 30th Street Cleveland, Ohio 44115 JAMES M. PETRO Attorney General of Ohio 30 East Broad Street, 26th Fl. Columbus, Ohio 43215-6001
For Respondent:
JUDGE FRANK D. CELEBREZZE, JR.: {¶ 1} Petitioner, Kimberly Smith, is the defendant in State v.
− 2− Smith, Cuyahoga County Court of Common Pleas Case Nos. CR-433395 and 462001. Petitioner avers that she is entitled to relief in
habeas corpus because the court of common pleas has not accurately calculated her jail time credit. Smith requests that this court
order respondent, Warden of the Northeast Pre-Release Center, to comply with R.C. 2967.191 by giving Smith credit for the total number of days she claims to have been in custody and to release her. For the reasons stated below, we dismiss the petition sua
sponte. {¶ 2} In State ex rel. Griffin v. McFaul, Cuyahoga App. No. 84360, 2004-Ohio-3863, petitioner requested “that this court compel respondent sheriff to forward the calculation of Griffin's jail time credit to prison authorities.” “Respondent [sheriff] has filed a motion for summary judgment and argues that it is the trial court's duty to specify the number of days jail time in a journal entry. See, e.g., State ex rel. Summers v. Saffold, Cuyahoga App. No. 82546, 2003 Ohio 3542. We agree.” {¶ 3} Similarly, in this case, Smith requests that this court compel respondent warden to release her based on a jail time credit amount that is different from that ordered by the court of common pleas. Furthermore, Smith avers that she has filed motions for Clearly, only
jail time credit in Case Nos. CR-433395 and 462001.
the court of common pleas has the authority to specify the number of jail time credit days, not respondent. As a consequence, we
must conclude that the petition does not state a claim in habeas
− 3− corpus. {¶ 4} The petition is also deficient in several aspects. As
was the case in Griffin v. McFaul, Cuyahoga App. No. 81658, 2002Ohio-4929, Smith has failed to: parties as required by Civ.R. include the addresses of the 10(A); attach a copy of the
commitment papers to the petition as required by R.C. 2725.04(D); and support her complaint with the affidavit required by R.C. 2969.25(A). See also Kittrell v. Adult Parole Auth., Cuyahoga App. Each of these defects is a sufficient
No. 81744, 2002-Ohio-5574.
ground for dismissal of this action. {¶ 5} Smith has also failed to support her complaint with an affidavit specifying the details of the claim as required by Local Rule 45(B)(1)(a). Smith’s affidavit merely states: “I, Kimberly
Smith, Pro-se Petitioner, after being duly sworn, attest that I have read fully the petition contained herein and do swear that the facts as contained therein under to pains of perjury, as I believe them to be.” Loc.App.R. The content of her affidavit does not conform to “This conclusory statement is not
45(B)(1)(a).
sufficient to satisfy the requirement of Loc.App.R. 45(B)(1)(a) that the affidavit supporting the complaint specify the details of the claim.” State ex rel. Perotti v. McFaul, Cuyahoga App. No. Failure to comply with Loc.App.R.
83622, 2004-Ohio-491, at ¶9.
45(B)(1)(a) is also grounds for dismissal. {¶ 6} Accordingly, we dismiss this action sua sponte. Smith to
− 4− pay costs. The clerk is directed to serve upon the parties notice Civ.R.
of this judgment and its date of entry upon the journal. 58(B). Petition dismissed.
FRANK D. CELEBREZZE, JR. JUDGE ANN DYKE, P.J., CONCURS KENNETH A. ROCCO, J., CONCURS
