[Cite as Smith v. Buchanan, 2014-Ohio-359.]
                             STATE OF OHIO, NOBLE COUNTY

                                 IN THE COURT OF APPEALS

                                      SEVENTH DISTRICT


WILLIAM E. SMITH                              )   CASE NO. 13 NO 407
                                              )
        PETITIONER                            )
                                              )
VS.                                           )   OPINION AND
                                              )   JUDGMENT ENTRY
WARDEN TIMOTHY BUCHANAN                       )
NOBLE CORRECTIONAL                            )
INSTITUTION                                   )
                                              )
        RESPONDENT                            )

CHARACTER OF PROCEEDINGS:                         Petition for Writ of Habeas Corpus

JUDGMENT:                                         Dismissed.

APPEARANCES:

For Petitioner:                                   William E. Smith, Pro se
                                                  #273-391
                                                  Noble Correctional Institution
                                                  15708 McConnellsville Road
                                                  Caldwell, Ohio 43724


For Respondent:                                   Atty. Michael DeWine
                                                  Attorney General of Ohio
                                                  Atty. Marc S. Davis
                                                  Assistant Ohio Attorney General
                                                  Criminal Justice Section
                                                  150 East Gay Street, 16th Floor
                                                  Columbus, Ohio 43215

JUDGES:

Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
                                                  Dated: January 27, 2014
[Cite as Smith v. Buchanan, 2014-Ohio-359.]
PER CURIAM.


        {¶1}    Petitioner William E. Smith is an inmate at the Noble Correctional

Institution in Noble County, Ohio. He has filed a petition for writ of habeas corpus

against Respondent Timothy Buchanan, the warden at that institution. Respondent

has filed a motion to dismiss the petition. Respondent's motion is hereby sustained

and the petition is dismissed.

                                              Background

        {¶2}    On January 7, 1993, Petitioner was indicted by the Richland County

Grand Jury for one count of felonious assault in Common Pleas Case No. 92CR626.

Petitioner entered a no contest plea on January 27, 1993. The trial court entered a

finding of guilt and ordered a presentence investigation.       The state agreed to

recommend that Petitioner be placed on probation. Petitioner failed to appear for the

presentence investigation and the trial court sentenced him to a term of incarceration

for an indefinite period of five to fifteen years on April 7, 1993. See State v. Smith,

5th Dist. Nos. 94-CA-62, 94-CA-64, 1995 WL 557408 (Aug. 28, 1995). On January

4, 1994, the trial court granted Petitioner's motion for shock probation and released

him from prison. After he violated the terms of his shock probation, his original

sentence was reimposed in July of 1994. State v. Smith, 5th Dist. No. 02CA67,

2003-Ohio-5592. The petition indicates that Petitioner was paroled again, that he

violated the terms of parole, and that he was recently ordered by the Ohio Adult

Parole Authority to serve 42 more months of his prison term. On October 24, 2013,

Petitioner filed this petition for writ of habeas corpus. Respondent filed a motion to
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dismiss on December 6, 2013. Petitioner filed a motion in opposition to the motion to

dismiss on December 20, 2013.

                                      Analysis

      {¶3}   R.C. 2725.01 provides: “Whoever is unlawfully restrained of his liberty,

or entitled to the custody of another, of which custody such person is unlawfully

deprived, may prosecute a writ of habeas corpus, to inquire into the cause of such

imprisonment, restraint, or deprivation.”     The writ of habeas corpus is an

extraordinary writ and will only be issued in certain circumstances of unlawful

restraint of a person's liberty where there is no adequate legal remedy at law, such

as a direct appeal or postconviction relief. In re Pianowski, 7th Dist. No. 03MA16,

2003-Ohio-3881, ¶3, citing State ex rel. Pirman v. Money, 69 Ohio St.3d 591, 593

635 N.E.2d 26 (1994). If a person is in custody by virtue of a judgment of a court of

record and the court had jurisdiction to render the judgment, the writ of habeas

corpus will not be allowed. Tucker v. Collins, 64 Ohio St.3d 77, 78, 591 N.E.2d 1241

(1992). The burden is on the petitioner to establish a right to release. Halleck v.

Koloski, 4 Ohio St.2d 76, 77, 212 N.E.2d 601 (1965); Yarbrough v. Maxwell, 174

Ohio St. 287, 288, 189 N.E.2d 136 (1963).

      {¶4}   Respondent has filed a Civ.R. 12(B)(6) motion to dismiss for failure to

state a claim.   The purpose of such a motion is to test the sufficiency of the

complaint. State el rel. Boggs v. Springfield Local School Dist. Bd. of Ed., 72 Ohio

St.3d 94, 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
                                                                                      -3-

in the complaint are true, the nonmoving party can prove no set of facts that would

entitle that party to the relief requested. State ex rel. Pirman, supra; Keith v. Bobby,

117 Ohio St.3d 470, 2008-Ohio-1443, 884 N.E.2d 1067, ¶10. If the petition does not

meet the requirements of a properly filed petition for writ of habeas corpus, or fails to

state a facially viable claim, it may be dismissed on motion by the respondent or sua

sponte by the court. Flora v. State, 7th Dist. No. 04 BE 51, 2005-Ohio-2382, ¶5.

       {¶5}   As mentioned above, R.C. 2725.01, et seq., governs habeas filings,

and failure to satisfy these statutory requirements is generally fatal to the petition.

One of the requirements is that the petitioner must file all pertinent commitment

papers relevant to the arguments being raised in the petition. R.C. 2725.04(D). The

commitment papers are necessary for a complete understanding of the petition.

Bloss v. Rogers, 65 Ohio St.3d 145, 146, 602 N.E.2d 602 (1992). Failure to file the

necessary commitment papers requires dismissal of the petition. Id. Petitioner's

arguments are all based on his presumption that he has spent too much time in

prison for a felonious assault conviction.      To even begin to examine such an

argument, we would need evidence of the terms of his original sentence, and the

results of all the subsequent parole violations and the corresponding commitment

papers. That information is not included in this petition. For this reason, the petition

must be dismissed.

       {¶6}   When an inmate files a civil action or appeal against a government

entity or employee, R.C. 2969.25(A) requires the petitioner to file an affidavit with the

petition describing all civil actions and appeals he or she has filed in state or federal
                                                                                      -4-

court within the past five years. One of the reasons for this requirement is to enable

the court to determine whether the current filing is malicious or vexatious. R.C.

2969.25(B). Compliance with R.C. 2969.25(A) is mandatory, and failure to satisfy the

statutory requirements is grounds for dismissal. State ex rel. Washington v. Ohio

Adult Parole Auth., 87 Ohio St.3d 258, 259, 719 N.E.2d 544 (1999).

         {¶7}   In Petitioner's motion in opposition to the motion to dismiss, he states

that he believes he filed the affidavit. It is not found in the record in this case.

Petitioner recently filed a document that purports to explain why he, in fact, did not

file the required affidavit.    Belated attempts to file the affidavit or to correct

noncompliance with R.C. 2969.25(A) do not prevent dismissal of the habeas petition.

Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982, ¶9. He

also averred that he filed no civil actions or appeals in the last five years. Oddly,

within the same document he refers to a case he recently filed in a federal district

court in West Virginia, and in his petition he also refers to a habeas action he filed in

2013 in the Fifth District Court of Appeals, which has already been dismissed by that

court.    State ex rel. Smith v. Richards, 5th Dist. No. 13CA46, 2013-Ohio-4667.

Petitioner obviously had cases he was required to declare in an affidavit of prior civil

actions. His failure to include the affidavit as part of his petition for writ of habeas

corpus is yet one more reason to dismiss the petition.

         {¶8}   R.C. 2969.22 requires state inmates to pay in advance the full filing

fees in civil actions and appeals commenced in state court (other than the Court of

Claims). In order to obtain a waiver of the requirement to prepay filing fees, the
                                                                                      -5-

inmate must comply with R.C. 2969.25(C) and file a fee waiver request affidavit, an

inmate account statement that is certified by the institutional cashier, and an asset

disclosure statement. The requirements of R.C. 2969.25(C) are mandatory. Failure

to comply requires dismissal of the petition. State ex rel. Alford v. Winters, 80 Ohio

St.3d 285, 685 N.E.2d 1242 (1997). Furthermore, the documents must be part of the

initial filing of the petition and cannot later be added or amended to the petition.

Hazel v. Knab, 130 Ohio St.3d 22, 2011-Ohio-4608, 955 N.E.2d 378, ¶1

(“subsequent filing of the statement [does] not cure the defect.”). Petitioner has not

paid the filing fee in full and has not properly requested a waiver of the filing fee.

More specifically, he did not file a statement setting forth the balance in his inmate

account for each of the preceding six months, certified by the institutional cashier.

R.C. 2969.25(C)(1).    This petition for writ of habeas corpus does not meet the

requirements of R.C. 2969.25(C). For this third reason, the petition also must be

dismissed.

       {¶9}   We cannot reach any of the substantive arguments in the petition due

to the many procedural deficiencies cited above.

                                      Conclusion

       {¶10} We hereby sustain Respondent's motion to dismiss the petition for writ

of habeas corpus. Petitioner committed a number of procedural errors that mandate

dismissal of the petition. He failed to file the pertinent commitment papers; failed to

file an affidavit of prior civil actions; and failed to file his inmate account statement
                                                                                -6-

with his affidavit of indigency. For all the aforementioned reasons, we dismiss the

petition for habeas corpus.

      {¶11} Costs taxed against Petitioner. Final order. Clerk to serve notice as

provided by the Civil Rules.

Waite, J., concurs.

Vukovich, J., concurs.

DeGenaro, P.J., concurs.
