[Cite as Wilson v. Miller,

.] STATE OF OHIO, BELMONT COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

CURTIS WILSON ex rel. ) CASE NO. 12 BE 6 ) PETITIONER ) ) VS. ) OPINION AND ) JUDGMENT ENTRY MICHELLE MILLER, WARDEN ) ) RESPONDENT )

CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus

JUDGMENT: Dismissed.

APPEARANCES:

For Relator: Curtis Wilson, Pro se #231-899 Belmont Correctional Institution P.O. Box 540 St. Clairsville, Ohio 43950

For Respondent: Atty. Mike DeWine Attorney General of Ohio Atty. Maura O’Neill Jaite Senior Assistant Attorney General Criminal Justice Section 150 East Gay Street, 16th Floor Columbus, Ohio 43215

JUDGES:

Hon. Cheryl L. Waite Hon. Joseph J. Vukovich Hon. Mary DeGenaro Dated: March 21, 2012 [Cite as Wilson v. Miller,

.] PER CURIAM.

{¶1} Petitioner Curtis Wilson has filed a pro se petition for writ of habeas

corpus with this Court. Petitioner was convicted in Cuyahoga County in 1991 of rape

and kidnapping, and was sentenced to two terms of 10-25 years of imprisonment, to

be served concurrently. He is currently an inmate at the Belmont County

Correctional Institution. Respondent Michele Miller is the warden of the prison.

{¶2} Petitioner was granted parole in October of 2007. On April 30, 2009, he

was arrested as a parole violator for possessing a loaded handgun, bullets,

handcuffs, mace, knives, and marijuana. He pleaded guilty to the parole violation.

On May 27, 2009, the Ohio Adult Parole Authority (“APA”) revoked his parole and

imposed as a sanction the requirement that he must serve 24 months of incarceration

before being eligible to be again considered for parole. On April 28, 2011, the Ohio

Parole Board (“OPB”) reviewed Petitioner’s status and continued his incarceration

until November 26, 2015, the maximum expiration date of his 10-25 year prison term.

{¶3} Petitioner filed this action on February 21, 2012. Respondent has filed

a motion to dismiss, and that motion is now before us. Petitioner contends that the

OPB violated the constitutional separation of powers doctrine by imposing additional

prison time to his sentence, and that he should be released from prison for that

reason. We cannot reach the merits of this argument because Petitioner failed to

complete the necessary steps for filing a petition for writ of habeas corpus. He failed

to file all of the pertinent commitment papers. He also failed to file the necessary

documents to obtain a waiver of the filing fee for his petition. Both of these errors

require dismissal of the petition. However, even if we were to reach the merits of his -2-

petition, we could not grant relief. The APA has not added prison time to his

sentence. It has only reimposed the original sentence that he received in 1991. A

habeas petitioner has no absolute right to be released until the expiration of the

maximum sentence, and the discretionary actions of the APA and OPB are not

reviewable in habeas proceedings. For these reasons and those that follow, we

grant Respondent’s motion and the petition for writ of habeas corpus is dismissed.

{¶4} R.C. 2725.01 provides: “Whoever is unlawfully restrained of his liberty,

or entitled to the custody of another, of which custody such person is unlawfully

deprived, may prosecute a writ of habeas corpus, to inquire into the cause of such

imprisonment, restraint, or deprivation.” The writ of habeas corpus is an

extraordinary writ and will only be issued in certain circumstances of unlawful

restraint of a person's liberty where there is no adequate legal remedy at law, such

as a direct appeal or post-conviction relief. In re Pianowski, 7th Dist. No. 03MA16,

, ¶3, citing State ex rel. Pirman v. Money,

, 593

(1994). “Absent a patent and unambiguous lack of jurisdiction, a party

challenging a court's jurisdiction has an adequate remedy at law by appeal.” Smith v.

Bradshaw,

,

,

, ¶10. If a person is

in custody by virtue of a judgment of a court of record and the court had jurisdiction to

render the judgment, the writ of habeas corpus will not be allowed. Tucker v. Collins,

,

(1992).

{¶5} A habeas petition may be dismissed on the pleadings under Civ.R.

12(C), or for failure to state a cognizable claim under Civ.R. 12(B)(6), when there are -3-

no viable factual grounds for relief or relief is legally prohibited, even after the

allegations in the pleadings are accepted as true and all reasonable inferences are

drawn in favor of the petitioner. State ex rel. Pirman v. Money,

,

(1994); Keith v. Bobby,

,

,

. If the petition does not meet the requirements of a properly

filed petition for writ of habeas corpus, or fails to state a facially viable claim, it may

be dismissed on motion by the respondent or sua sponte by court. Flora v. State, 7th

Dist. No. 04 BE 51,

.

{¶6} Before we can reach the merits of a habeas petition, we must examine

whether the petition meets the statutory filing requirements. Petitioner has failed to

file all of his pertinent commitment papers with his petition. Specifically, he did not

attach commitment papers regarding his February 20, 1991, convictions. R.C.

2725.04 states that:

{¶7} 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:

{¶8} ***

{¶9} (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 -4-

imprisonment or detention is without legal authority, such

fact must appear.

{¶10} Failure to attach copies of commitment papers, such as the judgment

entry of sentence, as part of the original filing of the petition for habeas corpus

requires the dismissal of the petition. Bloss v. Rogers,

,

(1992). Attaching only some of the paperwork is insufficient; the

petitioner must attach all of the relevant commitment papers or the petition is

defective. See State ex rel. Johnson v. Ohio Dept. of Rehab. & Corr.,

, 2002-Ohio1629,

. As the Ohio Supreme Court explained: “These

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.”

{¶11} Failure to file all the pertinent commitment papers cannot be cured by

filing them at some later point in the habeas proceedings. Boyd v. Money,

,

(1998).

{¶12} Without the commitment papers from his 1991 conviction, we cannot

review his petition. For this reason, the petition must be dismissed.

{¶13} Additionally, Petitioner has not paid the filing fee for the petition, nor has

he attached the necessary documentation to request a waiver of the filing fee. R.C. -5-

2969.25(C) requires an inmate filing a civil action against a government entity to file

an affidavit of indigency in order to have prepayment of full filing fees waived. This

affidavit must contain a statement of the balance in the inmate's account for each of

the six months prior to filing the civil action, and the statement must be certified by

the institutional cashier. The affidavit must also contain a statement setting forth all

cash and other things of value owned by the inmate. These requirements are

mandatory for proper filing of the action in cases where filing fees are not prepaid.

State ex rel. Alford v. Winters,

,

(1997); Harman

v. Wellington, 7th Dist. No. 00CA248 (Dec. 20, 2001); State ex rel. Jones v. Vivo, 7th

Dist. No. 00CA273 (June 27, 2001). Here, the filing fees were not prepaid.

Petitioner’s account statement does not include the six months prior to filing this

action. The account statement is not certified by an institutional cashier. Petitioner

has not included an asset disclosure statement. For these reasons, the petition must

be dismissed.

{¶14} Even if could reach the merits of Petitioner’s arguments, we could not

grant relief. Petitioner appears to be challenging the constitutionality of R.C.

2967.11, which was repealed in 1996. The former statute allowed the OPB to

impose a “bad time” extension on a prisoner's original prison term for offenses that

would constitute a crime pursuant to Ohio or federal law, regardless of whether the

prisoner was actually prosecuted for the offense. The statute was declared

unconstitutional under the separation of powers doctrine in State ex rel. Bray v. -6-

Russell,

,

(2000). Petitioner is alleging that such a

violation took place in this case.

{¶15} The argument Petitioner is making is not cognizable in habeas

proceedings. We have previously evaluated the same issue being raised by

Petitioner in State v. Stout, 7th Dist. No. 283,

(Dec. 22, 2000):

{¶16} Petitioner asserts that R.C. 2967.11 has been found

to violate the doctrine of separation of powers and is

unconstitutional under State ex rel. Bray v. Russell (2000),

,

, [.] * * * Petitioner

believes that he has been denied parole and given an

additional sentence[.]

{¶17} * * *

{¶18} “There is no constitutional or inherent right * * * to be

conditionally released before the expiration of a valid

sentence.” Greenholtz v. Inmates of Nebraska Penal &

Correctional Complex (1979),

,

,

. A prisoner who is denied

parole is not thereby deprived of “liberty” if state law makes

the parole decision discretionary. State ex rel. Blake v.

Shoemaker (1983),

, 4 OBR 86,

; State ex rel. Ferguson v. Ohio Adult Parole Auth.

(1989),

,

. -7-

{¶19} Under R.C. 2967.03, the parole decision is

discretionary.

* * * Thus,

[Petitioner] was deprived of no protected liberty interest

when he was denied parole, and can claim no due process

rights with respect to the parole determination. Jago v. Van

Curen (1981),

,

,

.”

{¶20} Petitioner's maximum sentence is not due to expire

until approximately May of 2010, less credited time served.

Since under Ohio law the parole board decisions are

discretionary, Petitioner has no absolute right to be

released until the expiration of his maximum sentence.

{¶21} For all the reasons cited above, Petitioner's Petition

for Writ of Habeas Corpus is without merit. Id. at *1-2.

{¶22} Petitioner, similar to the petitioner in Stout, is challenging the

discretionary action of the OPB regarding his eligibility for parole. “Testing the

constitutionality of parole eligibility requirements * * * is not cognizable in state

habeas corpus.” Ridenour v. Randle,

,

,

, ¶7. Since the discretionary action of OPB has not increased Petitioner’s

maximum term of imprisonment, and that term of imprisonment has not yet expired,

he has no basis for relief through a habeas proceeding. -8-

{¶23} Because Petitioner has not met the filing requirements for us to review

his petition and because he has not stated a viable claim for relief, we sustain

Respondent’s motion. This petition for writ of habeas corpus is hereby dismissed.

{¶24} Costs taxed against Petitioner. Final order. Clerk to serve notice as

provided by the Civil Rules.

Waite, P.J., concurs.

Vukovich, J., concurs.

DeGenaro, J., concurs.