Burns v. Delaware Cty.

[Cite as Burns v. Delaware Cty., 2011-Ohio-5642.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: KEVIN D. BURNS, : Hon. W. Scott Gwin, P.J. : Hon. Julie A. Edwards, J. Petitioner, : Hon. Patricia A. Delaney, J. : v. : : Case No. 2011CAD060060 STATE OF OHIO : DELAWARE COUNTY, : : OPINION Respondent.

CHARACTER OF PROCEEDING: Writ of Habeas Corpus JUDGMENT: Dismissed DATE OF JUDGMENT ENTRY: October 31, 2011 APPEARANCES: For Petitioner For Respondent

KEVIN D. BURNS PRO SE CAROL HAMILTON O'BRIEN Delaware County Jail Prosecuting Attorney 844 US RT. 42 140 N. Sandusky St., 3rd Fl. Delaware, OH 43015 Delaware, OH 43015

[Cite as Burns v. Delaware Cty., 2011-Ohio-5642.] Gwin, P.J.

{¶ 1} Petitioner, Kevin D. Burns, has filed a petition for Writ of Habeas Corpus alleging unlawful detention based upon his contention that Union County, has failed to act on its probation holder within a reasonable amount of time. We find it unnecessary to address the claims raised because Petitioner has failed to comply with the procedural requirements for a habeas petition.

{¶ 2} A review of the complaint reveals Petitioner has failed to attach the necessary commitment papers in compliance with R.C. 2725.04(D).

{¶ 3} The Supreme Court has held failure to comply with this requirement is a fatal defect which cannot be cured, “[C]ommitment 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, 602 N.E.2d 602. See also, Boyd v. Money, 82 Ohio St.3d 388, wherein the Supreme Court held, “Habeas corpus petitioner's failure to attach pertinent commitment papers to his petition rendered petition fatally defective, and petitioner's subsequent attachment of commitment papers to his post-judgment motion did not cure the defect.” R.C. § 2725.04(D).

{¶ 4} We find failure to include all pertinent entries has made a complete understanding of the Petition impossible. Delaware County, Case No. 2011CAD060060 3

{¶ 5} Further, R.C. 2725.04 requires that petitions for habeas corpus be verified. The instant petition does not contain an affidavit of verity. The Supreme Court of Ohio has consistently upheld the dismissal of habeas corpus petitions which are not verified. Hughley v. Saunders (2009), 123 Ohio St.3d 90, 2009-Ohio-4089, 914 N.E.2d 370.

{¶ 6} Finally, Petitioner has named “the State of Ohio, Delaware County” as the Respondent which is improper. The proper Respondent is the person who is directly responsible for keeping the petitioner in custody. Davis v. Wilson (2003), 100 Ohio St.3d 269, 270, 798 N.E.2d 379, 380.

{¶ 7} For these reasons, Petitioner’s petition for writ of habeas corpus is dismissed. By Gwin, P.J., Edwards, J., and Delaney, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JULIE A. EDWARDS

_________________________________ HON. PATRICIA A. DELANEY

WSG:clw 0906 [Cite as Burns v. Delaware Cty., 2011-Ohio-5642.]

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

KEVIN D. BURNS, : : Petitioner, : : : v. : JUDGMENT ENTRY : STATE OF OHIO DELAWARE COUNTY, : : : Respondent. : CASE NO. 2011CAD060060

For the reasons stated in our accompanying Memorandum-Opinion, Petitioner’s petition for writ of habeas corpus is dismissed.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JULIE A. EDWARDS

_________________________________ HON. PATRICIA A. DELANEY