Thomas v. Belmont Corr. Inst.
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[Cite as Thomas v. Belmont Corr. Inst., 2017-Ohio-1133.] STATE OF OHIO, BELMONT COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT State ex rel. BARRY L. THOMAS PETITIONER VS. MARY POTTER, WARDEN Belmont Correctional Institution, et al. RESPONDENTS ) ) ) ) ) ) ) ) ) ) CASE NO. 16 BE 0065 OPINION AND JUDGMENT ENTRY CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus JUDGMENT: Dismissed. APPEARANCES: For Petitioner For Respondent Barry L. Thomas, Pro-se BECI Dorm 6-A82 68518 Bannock Road State Route 331 St. Clairsville, Ohio 43950-0540 Attorney Michael DeWine Ohio Attorney General Attorney Maura O'Neill Jaite Senior Assistant Attorney General 150 East Gay Street, 16th Floor Columbus, Ohio 43215 JUDGES: Hon. Mary DeGenaro Hon. Cheryl L. Waite Hon. Carol Ann Robb Dated: March 17, 2017 [Cite as Thomas v. Belmont Corr. Inst., 2017-Ohio-1133.] PER CURIAM. {¶1} Petitioner Barry L. Thomas has filed a pro se petition for writ of habeas corpus claiming his incarceration is unlawful because the provisions of R.C. 2967.28 (Post-release-control) were “negligently ignored” at the time of his sentencing. Respondents have answered by filing a motion to dismiss and/or summary judgment motion. {¶2} Thomas’ petition provides no information concerning his conviction and sentence. Most notably, he did not attach his commitment papers to the petition. R.C. 2725.04 requires the following: Application for the writ of habeas corpus shall be by petition, signed and verified either by the party for whose relief it is intended, or by some person for him, and shall specify: *** (D) A copy of the commitment or cause of detention of such person shall be exhibited, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or detention is without legal authority, such fact must appear. {¶3} The Ohio Supreme Court has explained, “[t]hese commitment 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, 146, 602 N.E.2d 602 (1992). The papers must be included with the petition and failure to file them cannot be cured by filing them at some later point in the habeas proceedings. Boyd v. Money, 82 Ohio St.3d 388, 389, 696 N.E.2d 568 (1998); Davis v. Banks, 7th Dist. No. 12 NO 397, 2013-Ohio-1852, ¶ 8. In other words, the attachment of them to a subsequent pleading is insufficient to cure this defect. Id. -2- {¶4} Consequently, Respondents’ motion to dismiss is hereby granted. It is the judgment and order of this court that Petitioner’s habeas corpus petition is hereby dismissed. {¶5} Costs taxed against Petitioner. Final order. Clerk to serve notice as provided by the Civil Rules. DeGenaro, J. concurs. Waite, J., concurs. Robb, P.J., concurs.
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