[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Robinson v. Miller, Slip Opinion No. 2016-Ohio-7828.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2016-OHIO-7828
            ROBINSON, APPELLANT, v. MILLER, WARDEN, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as Robinson v. Miller, Slip Opinion No. 2016-Ohio-7828.]
Habeas corpus—R.C. 2969.25(C)—Failure to document balance of inmate account
        for six months preceding filing of petition—Court of appeals’ dismissal of
        petition for writ of habeas corpus affirmed.
  (No. 2016-0309—Submitted August 16, 2016—Decided November 22, 2016.)
      APPEAL from the Court of Appeals for Belmont County, No. 15 BE 62.
                               _____________________
        Per Curiam.
        {¶ 1} We affirm the Seventh District Court of Appeals’ dismissal of the
petition for a writ of habeas corpus filed by petitioner-appellant, Damon Robinson,
against respondent-appellee, Warden Michele Miller.
        {¶ 2} According to Robinson’s petition and the documents attached to it,
Robinson was sentenced by the Franklin County Court of Common Pleas in 1995
to a prison term of 7 to 25 years for one count of felonious assault on a police
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officer. After being released on parole, he pleaded guilty in 2011 to resisting arrest,
was given a three-year suspended sentence, and was placed on community control.
Robinson alleges that under his plea agreement, he was ordered to participate in a
community-based-correctional-facility program (“CBCF program”) and that he
was told by his parole officer that his 1995 case would be terminated upon his
completion of the CBCF program. He asserts that he completed the program in
February 2013 and that he was told by his parole officer that he was “done with”
his 1995 case.
       {¶ 3} In 2013, Robinson stipulated to a violation of his community-control
sanctions and was ordered to serve the three-year sentence for the 2011 resisting-
arrest conviction. In February 2015, after, Robinson alleges, he had completed his
resisting-arrest sentence, the Ohio Parole Board found that Robinson had violated
his parole for the 1995 sentence and imposed an additional three-year term of
confinement on that basis without first holding a revocation hearing.
       {¶ 4} Robinson filed this action in habeas corpus in the Seventh District,
claiming that the board did not have authority to extend his incarceration, because
he had been given a final release from his 1995 conviction.
       {¶ 5} The court of appeals dismissed the action because Robinson failed to
attach all his commitment papers to his petition, as required by R.C. 2725.04(D),
and failure to do so requires dismissal, see, e.g., Fugett v. Turner, 140 Ohio St.3d
1, 2014-Ohio-1934, 14 N.E.3d 984, ¶ 2 (failure to attach all commitment papers
“renders the petition fatally defective and subject to dismissal”). The court of
appeals stated that Robinson had failed to attach the judgment entries from his 1995
and 2011 convictions.
       {¶ 6} Robinson asserts in this court that he did attach all his commitment
papers to his petition in the court of appeals but the clerk of court lost the papers.
He requests leave to supplement the record with these documents, although he does




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not attach to the motion copies of all his judgment entries. However, we dismiss
the motion as moot, as we affirm on another ground.
       {¶ 7} We affirm the court of appeals’ dismissal because, although Robinson
filed an affidavit of indigency, he failed to attach a certified account statement of
his inmate balance for the six months preceding the filing of his action. R.C.
2969.25(C)(1) requires that inmates filing civil actions in forma pauperis submit
with their complaint an affidavit of indigency and “[a] statement that sets forth the
balance in the inmate account of the inmate for each of the preceding six months,
as certified by the institutional cashier.” The requirements of R.C. 2969.25 “ ‘are
mandatory, and failure to comply with them subjects an inmate’s action to
dismissal.’ ” Hazel v. Knab, 130 Ohio St.3d 22, 2011-Ohio-4608, 955 N.E.2d 378,
¶ 1, quoting State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262, 788
N.E.2d 634, ¶ 5.
       {¶ 8} Accordingly, we affirm the judgment of the court of appeals.
                                                                Judgment affirmed.
       O’DONNELL, LANZINGER, KENNEDY, and FRENCH, JJ., concur.
       O’CONNOR, C.J., dissents.
       O’NEILL, J., dissents, with an opinion joined by PFEIFER, J.
                               _________________
       O’NEILL, J., dissenting.
       {¶ 9} Respectfully, I must dissent.
       {¶ 10} A habeas corpus petition is most often used to question the authority
of the government to hold someone. In this matter, petitioner-appellant, Damon
Robinson, claims that he was given a final release from a 1995 conviction but then,
without a hearing, was kept in prison in 2015 for violating his parole for the 1995
conviction. The court of appeals dismissed Robinson’s habeas petition because he
had failed to include the commitment records required under R.C. 2725.04(D). I
would call that a procedural defect. And the majority now affirms the dismissal in




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his direct appeal to this court, in which he alleges that the clerk of courts lost these
records. This court affirms the dismissal on the grounds that Robinson failed to
attach a certified account statement of his inmate balance for the six months
preceding the filing of his action, as required under R.C. 2969.25(C)(1). I would
also call this a procedural defect. As he did in the court of appeals, Robinson is
raising a significant constitutional question here, and like the court of appeals, this
court is refusing to answer it because of a filing mistake. With the stakes so high—
we are talking about a person’s liberty—courts simply cannot be permitted to say,
“You have not crossed your t’s and dotted your i’s, so we are not required to listen
to you.”
        {¶ 11} We should not dismiss habeas petitions so readily, and neither
should the courts of appeals. We have held that “[t]he Rules of Civil Procedure are
generally applicable in original actions for extraordinary writs, including habeas
corpus actions.” Brooks v. Kelly, 144 Ohio St.3d 322, 2015-Ohio-2805, 43 N.E.3d
385, ¶ 6. Thus, we are talking about a civil, not a criminal, action. With regard to
dismissal orders in other civil cases, we have held that “Civ.R. 41(B)(1) applies to
all dismissals with prejudice” and in all such cases, litigants are entitled to “the due
process guarantee of prior notice.” (Emphasis sic.) Ohio Furniture Co. v. Mindala,
22 Ohio St.3d 99, 101, 488 N.E.2d 881 (1986). We later clarified that parties are
owed not only forewarning of the possibility of dismissal but also “a reasonable
opportunity to defend against dismissal.” Quonset Hut, Inc. v. Ford Motor Co., 80
Ohio St.3d 46, 49, 684 N.E.2d 319 (1997). We adopted this rule because “the very
purpose of notice is to provide a party with an opportunity to explain its default
and/or to correct it.” Id.
        {¶ 12} Somewhere along the line, this court decided not to require notice
and an opportunity to correct errors before dismissals in habeas corpus cases.
Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982, ¶ 7 and
9 (“under Ohio law, state writ actions are civil actions,” but “Fuqua’s belated




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attempt to file the required affidavit does not excuse his noncompliance”). We
decided instead that the requirements of R.C. 2969.25 are so vital to the
determination of a habeas petition that “failure to comply with them requires
dismissal of an inmate’s complaint” and “an inmate may not cure the defect by later
filings.” State ex rel. Hall v. Mohr, 140 Ohio St.3d 297, 2014-Ohio-3735, 17
N.E.3d 581, ¶ 4. Faced with the fact that our case law unequivocally requires notice
and an opportunity to cure prior to a dismissal with prejudice, and faced with a
glaring due-process problem, we decided that a dismissal for failure to comply with
R.C. 2969.25 is not a dismissal with prejudice. State ex rel. Watkins v. Andrews,
142 Ohio St.3d 308, 2015-Ohio-1100, 29 N.E.3d 967, ¶ 8.
       {¶ 13} At best, the rule that a petitioner cannot cure an R.C. 2969.25 defect
by later filings results in inefficiency because it requires petitioners to start over
with new filings. At its worst, this rule might confuse a petitioner or dissuade him
or her from continuing to pursue a legitimate habeas claim. Or the rule might
unfairly deny relief in the federal courts, which have at least twice called a dismissal
for failure to comply with R.C. 2969.25 a “procedural default,” precluding federal
habeas review of the merits of a habeas claim. White v. Richards, S.D.Ohio No.
3:15–cv–092, 2015 WL 4465349, *3 (July 21, 2015); Boswell v. Warden, Lebanon
Corr. Inst., S.D.Ohio No. 1:07–cv–702, 2008 WL 4411416, *9 (Sept. 29, 2008).
       {¶ 14} I do not question the holdings that habeas petitioners must follow
statutory requirements in order for courts to reach the merits of their claims. Bloss
v. Rogers, 65 Ohio St.3d 145, 146, 602 N.E.2d 602 (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”); State ex rel. Hunter v. Cuyahoga Cty. Court of Common
Pleas, 88 Ohio St.3d 176, 177-178, 724 N.E.2d 420 (2000) (“The certified
statement of the prison cashier required by R.C. 2969.25(C) concerning Hunter’s




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inmate account would have allowed Hunter to support his bare, conclusory
assertion that he was indigent”). Instead, I question the practice of resolving these
cases entirely on procedural technicalities without offering the petitioner a chance
to comply with the statutes. At the very least, courts should state in their judgment
entries that habeas cases dismissed for noncompliance with the statutes are
dismissed without prejudice.
       {¶ 15} We should reverse the judgment of the court of appeals and remand
the cause to that court for it to allow Robinson the opportunity to cure whatever
defaults subject his habeas petition to dismissal.
       {¶ 16} Respectfully, I dissent.
       PFEFIFER, J., concurs in the foregoing opinion.
                                _________________
       Damon Robinson, pro se.
       Michael DeWine, Attorney General, and Paul Kerridge, Assistant Attorney
General, for appellee.
                                _________________




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