[Cite as State ex rel. Miller v. May, Warden,

.]

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.,

,

(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,

,

,

. 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,

.

{¶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,

,

(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,

, 2018-

Ohio-4184,

. Failure to attach the relevant commitment papers is

fatally defective to a petition for writ of habeas corpus.

.

{¶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.,

,

(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