[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Davis v. Sheldon, Slip Opinion No. 2020-Ohio-436.]




                                        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. 2020-OHIO-436
              DAVIS, APPELLANT, v. SHELDON, SHERIFF, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as Davis v. Sheldon, Slip Opinion No. 2020-Ohio-436.]
Habeas corpus—Inmate failed to comply with commitment-paper and verification
        requirements of R.C. 2725.04—Court of appeals’ dismissal of petition
        affirmed.
  (No. 2019-0782—Submitted October 22, 2019—Decided February 12, 2020.)
    APPEAL from the Court of Appeals for Richland County, No. 2019-CA-47.
                                ___________________
        Per Curiam.
        {¶ 1} Appellant, James B. Davis, appeals the judgment of the Fifth District
Court of Appeals dismissing his petition for a writ of habeas corpus. We affirm.
                         Facts and Procedural Background
        {¶ 2} On May 12, 2019, Davis was arrested in Richland County and held in
jail on a felony charge of domestic violence. The Mansfield Municipal Court
scheduled a preliminary hearing for May 16, 2019, but that day granted the state’s
motion for a continuance.
                             SUPREME COURT OF OHIO




       {¶ 3} On May 28, 2019, Davis filed a petition for a writ of habeas corpus in
the court of appeals against appellee, Richland County Sheriff J. Steve Sheldon,
arguing that he was entitled to immediate release because the municipal court had
failed to conduct a preliminary hearing within ten days after his arrest, in violation
of R.C. 2945.71(C). Davis also claimed that the municipal court’s continuance was
fatally flawed because the court had failed to state any reason for the continuance.
The next day, the court of appeals issued an alternative writ ordering the sheriff to
release Davis “forthwith” or else show cause by May 30 at 12:00 p.m. why Davis’s
release should not be ordered.
       {¶ 4} On May 30, the municipal court held a hearing and issued an order
clarifying its reason for granting the continuance. The judge stated:


               This Court hereby finds that on the date of May 16, 2019,
       the State [p]resented adequate cause for the requested continuance,
       as a necessary witness was served her subpoena, but did not make
       herself present for the hearing. As the witness[’s] testimony was
       essential to the case, cause was found, and a reasonable continuance
       granted.
               Therefore, this Court finds that cause existed at the time of
       the continuance.


The judge signed the order at 11:59 a.m., and the clerk journalized it at 12:03 p.m.
       {¶ 5} On June 5, 2019, the court of appeals issued a judgment entry
dismissing Davis’s petition for a writ of habeas corpus. The court rejected Davis’s
argument that the municipal court had failed to comply with the noon deadline,
holding, “We find Respondent did comply with the deadline as indicated by his
notation that the order was signed at 11:59 a.m.” The court concluded that “the




                                          2
                                January Term, 2020




12:03 p.m. time stamp could at most be classified as a de minim[i]s noncompliance
with this Court’s order and is of no substantive consequence.”
       {¶ 6} On June 11, 2019, Davis filed a notice of appeal from the Fifth
District’s judgment and a motion to stay the court’s judgment. On July 24, 2019,
we denied Davis’s motion for a stay. 156 Ohio St.3d 1470, 2019-Ohio-2953, 126
N.E.3d 1185.
                                     Analysis
       {¶ 7} The court of appeals correctly dismissed Davis’s petition, because the
petition does not comply with the mandatory filing requirements of R.C. 2725.04
and because his claims are not cognizable in habeas corpus.
       {¶ 8} Davis’s petition is fatally defective because he failed to satisfy the
commitment-paper and verification requirements of R.C. 2725.04. He did not
attach any commitment papers as required by R.C. 2725.04(D). See Griffin v.
McFaul, 116 Ohio St.3d 30, 2007-Ohio-5506, 876 N.E.2d 527 (affirming denial of
writ of habeas corpus sought by county-jail inmate for his failure to attach
commitment papers). And Davis’s petition does not contain any verification;
neither Davis nor his attorney swore to the truth of the facts contained therein. See
Chari v. Vore, 91 Ohio St.3d 323, 327-328, 744 N.E.2d 763 (2001) (holding that
habeas corpus petition’s lack of verification required dismissal).
       {¶ 9} Even if Davis had satisfied the requirements of R.C. 2725.04, his
claims would not be cognizable in habeas corpus, because he was indicted on June
24, 2019, on the same charge for which he has been held in jail since May 12, 2019.
See Gibson v. Wilson, 5th Dist. Richland No. 08CA85, 2009-Ohio-829, ¶ 12
(habeas corpus will not lie for failure to hold a preliminary hearing once grand jury
has returned an indictment); Nash v. McFaul, 8th Dist. Cuyahoga No. 81439, 2002-
Ohio-3647, ¶ 2 (indictment renders any defects in a preliminary hearing moot).
       {¶ 10} We therefore affirm the judgment of the court of appeals.
                                                                 Judgment affirmed.




                                         3
                            SUPREME COURT OF OHIO




       O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, DONNELLY, and
STEWART, JJ., concur.
       KENNEDY, J., concurs in judgment only.
                              _________________
       Darin Avery, for appellant.
       Gary D. Bishop, Richland County Prosecuting Attorney, and Joseph C.
Snyder, Assistant Prosecuting Attorney, for appellee.
                             ___________________




                                        4
