[Cite as Turner v. Coulson, 2015-Ohio-5341.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                       LAKE COUNTY, OHIO


JOHN L. TURNER, JR.,                            :      PER CURIAM OPINION

                 Petitioner,                    :
                                                       CASE NO. 2015-L-087
        - vs -                                  :

CHARLES COULSON, LAKE COUNTY                    :
CHIEF PROSECUTOR, et al.,
                                                :
                 Respondents.
                                                :


Original Action for Writ of Habeas Corpus.

Judgment: Petition dismissed.


John L. Turner, Jr., pro se, c/o Lake County Jail, 104 East Erie Street, Painesville, OH
44077 (Petitioner).

Charles E. Coulson, Lake County Prosecutor, Lake County Administration Building,
105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Respondents).



PER CURIAM.

        {¶1}     Petitioner, John L. Turner, Jr., seeks a writ of habeas corpus against

respondents, Lake County Prosecutor Charles Coulson and Lake County Sheriff Daniel

Dunlap, for his immediate release from imprisonment at the Lake County Jail. Petitioner

filed his petition while his criminal case was pending in the Lake County Court of

Common Pleas. For the reasons that follow, this action is dismissed.
       {¶2}   Petitioner, acting pro se, filed his petition for a writ of habeas corpus on

August 5, 2015. He alleges he is being illegally held in jail by Sheriff Dunlap because

the recording of a 911 call made by a victim of his thefts, which petitioner needed to

refute the prosecution’s witnesses, was destroyed by the state. As a result, he alleges

his due process rights were violated. He also alleges the amount of bail set by the trial

court was excessive. Along with his petition, petitioner filed an excerpt of the indictment

in his criminal case, a police report, three witness statements, an affidavit of his prior

civil actions, and an affidavit purporting to comply with R.C. 2969.25(C), requesting the

waiver of prepayment of this court’s filing fee.

       {¶3}   Upon review of petitioner's petition, it is immediately apparent that it is

defective on its face. A court may sua sponte dismiss a petition for an extraordinary writ

for failure to state a claim upon which relief can be granted if the petition is frivolous or

the claimant obviously cannot prevail on the facts alleged in the petition. Hill v. Kelly,

11th Dist. Trumbull No. 2011-T-0094, 2011-Ohio-6341, ¶4, citing State ex rel.

Thompson v. Spon, 83 Ohio St.3d 551, 553 (1998); State ex rel. Bruggeman v.

Ingraham, 87 Ohio St.3d 230, 231 (1999).

       {¶4}   Petitioner’s petition fails to comply with several statutory requirements for

habeas relief. One of these requirements is that the petitioner must file all pertinent

commitment papers along with the petition. R.C. 2725.04(D). The Ohio Supreme Court

has held that the commitment papers are necessary for a complete understanding of

the petition. 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




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how the commitment was procured, and there is nothing before the court on which to

make a determined judgment, except the bare allegations of the petition. Bloss, supra.

       {¶5}    In State ex rel. Cruz v. Sloan, 11th Dist. Ashtabula No. 2014-A-0032,

2014-Ohio-5180, ¶12, this court stated: “Relator failed to attach the sentencing entry or

any of his commitment papers. Without the full scope of relator’s commitment papers, it

would be impossible for us to fully understand the petition. Due to this defect, the

petition must be dismissed.” Because petitioner has failed to file any of his commitment

papers, his petition must be dismissed.

       {¶6}    Further, when an inmate initiates any civil action or appeal against a

government employee or entity, such as respondents, R.C. 2969.25(A) requires an

affidavit describing each of the inmate’s prior civil actions and civil appeals within the

last five years to be filed at the same time the civil action or appeal is filed. In addition,

the affidavit identifying the civil actions and appeals previously filed must include a “brief

description of the nature of the civil action or appeal” and “[t]he name of each party to

the civil action or appeal.” R.C. 2969.25(A)(1) and (3). “The requirements of R.C.

2969.25 are mandatory, and failure to comply with them subjects an inmate’s action to

dismissal.” State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262, ¶5. R.C.

2969.25(A) applies to habeas filings. Fuqua v. Williams, 100 Ohio St.3d 211, 2003-

Ohio-5533, ¶6-9. Belated attempts to file this affidavit cannot correct noncompliance

with the statute. Id. at ¶9. “Failure to timely file the required affidavit of prior civil actions

mandates dismissal of the petition. Cruz, supra, at ¶13, citing State ex rel. Washington

v. Ohio Adult Parole Auth., 87 Ohio St.3d 258, 259 (1999).




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       {¶7}   While petitioner has filed an affidavit of his prior civil actions, it is legally

insufficient for several reasons. First, it does not purport to list all of his prior appeals

within the last five years. Although petitioner concedes he has one appeal now pending

in the Ohio Supreme Court, he does not describe it or list the parties to it. He also

states he filed an appeal in this court, but he does not describe it or list the parties to it.

In addition, while petitioner concedes he has filed three habeas petitions in the Eighth

District, he does not provide a description of any of them or list the names of the parties

to those actions. Further, while he says he has filed three mandamus actions in the

Eighth District, he only describes one of them and does not state the names of the

parties involved in any of them. He states he filed two habeas cases in the Ninth

District, but, again, he does not provide a description of either or state the names of the

parties to those actions. Petitioner states he filed two habeas cases in this court, but,

again, he describes neither and does not list the parties involved in either. Petitioner

says he filed three other mandamus actions, but does not say where he filed them. Nor

does he describe any of them or list the parties involved.          He also states he filed

multiple civil actions in Franklin, Lake, and/or Cuyahoga Counties, but he does not

describe any of them or list their parties. For this additional reason, the petition is

defective and must be dismissed.

       {¶8}   Moreover, R.C. 2969.25(C) requires an inmate, who files a civil action or

appeal against a government entity or employee, seeking waiver of the filing fee to file

an affidavit of indigency. Along with that affidavit, the inmate must also file a statement

of the inmate's account balance for each of the previous six months “as certified by the

institutional cashier.”   Failure to file a certified statement of the inmate’s account




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balance at the time of the initial filing of the petition results in dismissal of the petition.

Hazel v. Knab, 130 Ohio St.3d 22, 2011-Ohio-4608, ¶1. In Hazel, supra, the Ohio

Supreme Court held that the error cannot be corrected after the initial filing and is fatal

to the petition.

       {¶9}    Here, while petitioner filed an affidavit listing his account balances for the

last six months, which was signed by a corrections officer, it was not certified by the

institutional cashier. For this additional reason, the petition is defective and must be

dismissed.

       {¶10} Further, the petition did not satisfy the mandatory requirement of R.C.

2725.04 that the petition for a writ of habeas corpus be verified. Where a habeas

corpus petition does not contain any verification, it is subject to dismissal. Chari v.

Vore, 91 Ohio St.3d 323, 328 (2001); Jordan v. Johnson, 12th Dist. Madison No.

CA2013-03-007, 2013-Ohio-3679, ¶17.             Because petitioner’s petition for a writ of

habeas corpus was not verified, it must be dismissed.

       {¶11} In summary, petitioner failed to file any commitment papers with his

petition. He also failed to file a proper affidavit of prior civil actions and appeals along

with the petition. Further, he failed to file a certified inmate account statement.

Moreover, he failed to provide any verification for his petition. For any one or more of

these reasons, petitioner did not state a facially valid habeas-corpus claim, and he

obviously cannot prevail on his petition. Therefore, the petition must be and is hereby

dismissed.

       {¶12} In any event, even if petitioner’s petition was not barred on procedural

grounds, the petition would still lack merit.




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      {¶13} “Like other extraordinary-writ actions, habeas corpus is not available when

there is an adequate remedy in the ordinary course of law.” In re Goeller, 103 Ohio

St.3d 427, 2004-Ohio-5579, ¶6. Where the petitioner had an adequate remedy in the

ordinary course of the law by way of a direct appeal, he is not entitled to a writ of

habeas corpus. Robinson v. LaRose, 11th Dist. Trumbull No. 2015-T-0051, 2015-Ohio-

4323, ¶29.

      {¶14} Here, petitioner alleges that the prosecutor stated in open court that when

she received the case on August 4, 2014, there was no recording of the 911 call in her

file. Based on this, petitioner argues the state destroyed the recording.       Petitioner

argues he could have used the recording to refute the state’s witnesses and, because it

was destroyed, his due process rights have been violated. However, a review of the

docket in the underlying criminal case reveals that on September 16, 2015, petitioner

was found guilty by a jury of seven counts of felony theft and one count of intimidation,

and the court sentenced him to 8 and one-half years in prison. Thus, petitioner has an

adequate remedy in the ordinary course of the law via a direct appeal to assert his due-

process argument. As a result, this argument is not proper grounds for habeas relief.

      {¶15} Further, because petitioner has already been convicted in the underlying

case, his excessive-bail argument is moot. State ex rel. Zayed v. McFaul, 8th Dist.

Cuyahoga No. 87110, 2005-Ohio-6974, ¶4-5.

      {¶16} For the reasons stated in the opinion of this court, this action is dismissed.



TIMOTHY P. CANNON, P.J., DIANE V. GRENDELL, J., CYNTHIA WESTCOTT RICE,
J., concur.




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