[Cite as Stallings v. Tibbals, 2012-Ohio-5449.]


                                         COURT OF APPEALS
                                      RICHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



THOMAS STALLINGS                                     JUDGES:
                                                     Hon. W. Scott Gwin, P. J.
        Petitioner                                   Hon. Sheila G. Farmer, J.
                                                     Hon. John W. Wise, J.
-vs-
                                                     Case No. 12 CA 47
TERRY TIBBALS, WARDEN

        Respondent                                   OPINION




CHARACTER OF PROCEEDING:                          Writ of Habeas Corpus


JUDGMENT:                                         Dismissed



DATE OF JUDGMENT ENTRY:                           November 20, 2012



APPEARANCES:

For Petitioner                                    For Respondent

THOMAS STALLINGS, PRO SE                          STEPHANIE L. WATSON
Mansfield Correctional Institution                PRINCIPAL ASSISTANT ATT. GENERAL
1150 North Main Street, P. O. Box 788             150 East Gay Street, 16th Floor
Mansfield, Ohio 44901                             Columbus, Ohio 43215-6001
Richland County, Case No. 12 CA 47                                                     2

Wise, J.

      {¶1}   Petitioner, Thomas Stallings, has filed a petition for writ of habeas corpus

alleging he is entitled to release from prison based upon an improper bindover hearing.

Respondent has filed a motion to dismiss arguing the petition must be dismissed as res

judicata.

      {¶2}   Petitioner was convicted of the murder of a fifteen year old boy. At the

time of the offense, Petitioner was also a minor. Petitioner claims the bindover hearing

which transferred the case from juvenile to adult court was defective because his

attorney waived the investigation requirement of Juv.R. 30.

      {¶3}   Petitioner has also filed a motion to amend his petition to include

additional alleged defects in the bindover process. We grant the motion to amend but

find it does not alter our resolution of this matter.

      {¶4}   A writ of habeas corpus will lie in certain extraordinary circumstances

where there is an unlawful restraint of a person's liberty and there is no adequate

remedy in the ordinary course of law. Howard v. Catholic Social Serv. of Cuyahoga

Cty., Inc. (1994), 70 Ohio St.3d 141, 144, 637 N.E.2d 890, 893.

      {¶5}   Initially, a review of the complaint reveals Petitioner has failed to attach

the necessary commitment papers in compliance with R.C. 2725.04(D).              He has

included the bindover entry but has not included his sentencing entry from his

conviction. Without those commitment papers, this Court cannot determine whether

his sentence has expired.

      {¶6}   The Supreme Court has held failure to comply with this requirement is a

fatal defect which cannot be cured, “[C]ommitment papers are necessary for a
Richland County, Case No. 12 CA 47                                                     3


complete understanding of the petition. Without them, the petition is fatally defective.

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.” Bloss v. Rogers, 65 Ohio St.3d 145, 602 N.E.2d

602.

       {¶7}    We also find Petitioner has already raised the same claim raised herein in

a previous petition filed in the Eleventh District Court of Appeals. See Stallings v.

Mitchell, Case Number 97-T-0010 (Eleventh District), 1997 WL 665978. The Supreme

Court has also held that a petition should be dismissed as successive where a claim

has been or could have been raised in a prior petition. State ex rel. Harsh v. Sheets

2012 WL 1957882, 1 (Ohio,2012).

       {¶8}    Because Petitioner has failed to attach the necessary commitment papers

and has filed a petition which is barred by res judicata as a successive petition, the

instant petition is dismissed.

By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.

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                                             ___________________________________

                                                                JUDGES
JWW/d 1113
Richland County, Case No. 12 CA 47                                             4


           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




THOMAS STALLINGS                        :
                                        :
       Petitioner                       :
                                        :
-vs-                                    :         JUDGMENT ENTRY
                                        :
TERRY TIBBALS, WARDEN                   :
                                        :
       Respondent                       :         Case No. 12 CA 47




       For the reasons stated in our accompanying Memorandum-Opinion, the writ of

habeas corpus is dismissed.

       Costs assessed to petitioner.




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                                                          JUDGES
