[Cite as Gaston v. Bauders, 2020-Ohio-2669.]


STATE OF OHIO                    )                    IN THE COURT OF APPEALS
                                 )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                  )

NAOMI GASTON

        Petitioner                                   C.A. No.       20AP0001

        v.

MAGISTRATE JERRY BAUDERS, ET                         ORIGINAL ACTION IN
AL.                                                  HABEAS CORPUS

        RESPONDENTS


Dated: April 27, 2020



        PER CURIAM.

        {¶1}    Naomi Gaston has petitioned this Court for a writ of habeas corpus directed to

two Wayne County Court of Common Pleas Magistrates and Judge Corey Spitler. It appears that

Ms. Gaston’s petition focuses on child support orders and her past incarceration for failing to pay

support.

        {¶2}    For the following reasons, we dismiss the petition sua sponte. Sua sponte

dismissal of a petition, without notice, is appropriate only if the petition is frivolous or

the claimant obviously cannot prevail on the facts alleged in the petition. See, e.g., State

ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 2005-Ohio-3674, ¶ 7.

        {¶3}    Ms. Gaston filed a document captioned, in part, “PETITION NON-

STATUTORY WRIT OF HABEAS CORPUS.” In the first sentence of her petition, Ms.

Gaston alleged that she “is a victim of deprivation of property caused by a void judgment

crated in violation of due process * * *.” The next ten pages cite United States Supreme
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Court decisions related to the federal writ of habeas corpus. The petition includes an

allegation that Ms. Gaston “serve[d] time in jail on numerous occasions on a civil matter.”

She added that she had been imprisoned due to unpaid child support. The complaint also

alleges that she has not had a trial by a jury of her peers or been compensated for her

property. She also alleged that the “judgment for child support is void because it was

issued by a person not a judge * * *.” We address her allegations below.

       {¶4}   First, Ms. Gaston has relied, in part, on the federal statute authorizing a

petition for writ of habeas corpus. This Court lacks authority to grant a federal writ of

habeas corpus. Section 3(B)(1), Article IV, of the Ohio Constitution grants this Court

original jurisdiction to grant a writ of habeas corpus. The requirements for the writ of

habeas corpus in Ohio are set forth in R.C. 2725.01 et seq.

       {¶5}   To be entitled to a State writ of habeas corpus, a party must show that she

is being unlawfully restrained of her liberty, R.C. 2725.01, and that she is entitled to

immediate release from prison or confinement. See, e.g., State ex rel. Cannon v. Mohr,

155 Ohio St.3d 213, 2018-Ohio-4184, ¶ 10. Ms. Gaston did not allege that she is currently

incarcerated and, if she is currently incarcerated, she failed to attach a copy of her

commitment papers, a defect that requires dismissal of her petition. See, e.g., State ex rel.

Norris v. Wainwright, 158 Ohio St.3d 20, 2019-Ohio-4138, ¶ 6.

       {¶6}   Ms. Gaston also did not name the person who has confined her, the place

of her confinement, or attach a copy of her commitment papers. R.C. 2725.04(B), (C),

and (D). The Ohio Supreme Court has held that because “‘commitment papers are

necessary for a complete understanding of the petition,’” the omission of commitment
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papers is a fatal defect. Brown v. Rogers, 72 Ohio St.3d 339, 341 (1995), quoting Bloss

v. Rogers, 65 Ohio St.3d 145, 146 (1992). “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.” Brown at 341, quoting

Bloss at 146. Because Ms. Gaston’s petition did not include this required information,

her petition for writ of habeas corpus must be dismissed.

       {¶7}   Second, Ms. Gaston alleges that she has served time in jail in the past for

failing to pay child support. The writ of habeas corpus is not available to challenge past

incarceration. See, e.g., State ex rel. Hawkins v. Haas, 141 Ohio St.3d 98, 2014-Ohio-

5196, ¶ 4. Accordingly, she is not entitled to the writ of habeas corpus on this basis.

       {¶8}   Finally, she has alleged the trial court’s orders are void because she did not

have a trial by her peers and the order was issued by a person who is not a judge. Habeas

corpus is not available where there is an adequate remedy at law. See, e.g., Drake v.

Tyson-Parker, 101 Ohio St.3d 210, 2004-Ohio-711, ¶ 5. Ms. Gaston’s allegations give

rise to claims that could have been raised on appeal, so the writ of habeas corpus is not

available.

       {¶9}   Because Ms. Gaston did not comply with the statutory requirements for

filing a habeas corpus action, the case is dismissed. Costs taxed to Ms. Gaston.
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       {¶10} 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. Civ.R. 58.




                                                  LYNNE S. CALLAHAN
                                                  FOR THE COURT
SCHAFER, J.
TEODOSIO, J.
CONCUR.

APPEARANCES:

NAOMI GASTON, Pro se, Petitioner.
