[Cite as State ex rel. Miller v. May, Warden, 2019-Ohio-4065.]


                                        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., 72 Ohio St.3d

94, 95, 647 N.E.2d 788 (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, 117 Ohio St.3d 470, 2008-Ohio-1443, 884

N.E.2d 1067, ¶10. 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, 2005-Ohio-2383, ¶5.

      {¶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, 65 Ohio St.3d 145, 146, 602 N.E.2d 602

(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, 155 Ohio St.3d 213, 2018-

Ohio-4184, 120 N.E.3d 776, ¶10. Failure to attach the relevant commitment papers is

fatally defective to a petition for writ of habeas corpus. Bloss at 146.

      {¶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., 82 Ohio St.3d 270,

272, 695 N.E.2d 254 (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.



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