[Cite as Herrington v. Lazaroff, 2016-Ohio-7655.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                            JUDGES:
DAMOND D. HERRINGTON                                :       Hon. W. Scott Gwin, P.J.
                                                    :       Hon. Patricia A. Delaney, J.
                                  Petitioner        :       Hon. Craig R. Baldwin, J.
                                                    :
-vs-                                                :
                                                    :       Case No. 15CA102
ALLEN LAZAROFF, WARDEN                              :
                                                    :
                               Respondent           :       OPINION




CHARACTER OF PROCEEDING:                                Writ of Habeas Corpus, Richland County
                                                        Court of Common Pleas, Case No. 2008-
                                                        06-2074(A)

JUDGMENT:                                               Dismissed

DATE OF JUDGMENT ENTRY:                                 November 7, 2016

APPEARANCES:

For Plaintiff-Appellant                                 For Defendant-Appellee

JONATHAN R KHOURI                                       DAMOND D. HERRINGTON PRO SE
Assistant Attorney General                              #A562-202
150 East Gay Street, 16th Fl.                           Mansfield Correctional Institution
Columbus, OH 43215                                      1150 North Main St.
                                                        Mansfield, Oh 44901
Richland County, Case No. 15CA102                                                              2

Gwin, P.J.

       {¶1}   Petitioner Damond D. Herrington has filed a petition for Writ of Habeas

Corpus requesting his conviction for attempted aggravated murder be vacated on the

basis attempted murder is not a crime cognizable in Ohio. Respondent has filed a motion

to dismiss.

       {¶2}   R.C. 2969.25(A) governs the procedure for actions filed by inmates and

provides in relevant part, “(A) At the time that an inmate commences a civil action or

appeal against a government entity or employee, the inmate shall file with the court an

affidavit that contains a description of each civil action or appeal of a civil action that the

inmate has filed in the previous five years in any state or federal court.”

       {¶3}    “Habeas corpus actions are “civil actions,” within meaning of statutes

imposing requirements for the filing of civil actions by inmates, such as requiring an

affidavit of civil litigation history. R.C. § 2969.21 et seq.” Fuqua v. Williams, 2003–Ohio–

5533, 100 Ohio St.3d 211, 797 N.E.2d 982, HN 1.

       {¶4}   The petition in this case did not contain an affidavit of prior civil actions.

       {¶5}   The Supreme Court has approved the dismissal of a habeas petition where

an inmate fails to file an affidavit in compliance with R.C. 2969.25. See Fuqua v. Williams,

2003–Ohio–5533, 100 Ohio St.3d 211, 797 N.E.2d 982, HN 1.

       {¶6}   Further, Relator has failed to comply with R.C. 2969.25(C)(1), which

mandates that he file a statement setting forth his inmate account balance “for each of

the preceding six months, as certified by the institutional cashier.” State ex rel. Jackson

v. Calabrese, 143 Ohio St.3d 409, 2015–Ohio–2918, 38 N.E.3d 880; State ex rel. Castro

v. Corrigan, 129 Ohio St.3d 342, 2011–Ohio–4059, 952 N.E.2d 497.
Richland County, Case No. 15CA102                                                        3


      {¶7}    “‘The requirements of R.C. 2969.25 are mandatory, and failure to comply

with them subjects an inmate's action to dismissal.’” Boles v. Knab, 129 Ohio St.3d 222,

2011–Ohio–2859, 951 N.E.2d 389, ¶ 1, quoting State ex rel. White v. Bechtel, 99 Ohio

St.3d 11, 2003–Ohio–2262, 788 N.E.2d 634, ¶ 5; State ex rel. McGrath v. McDonnell, 126

Ohio St.3d 511, 2010–Ohio–4726, 935 N.E.2d 830, ¶ 1.

      {¶8}    After Respondent filed the motion to dismiss raising the petition’s defects,

Petitioner filed a motion to “expand the record” to include his inmate account information.

Petitioner refused to serve the motion to upon Respondent even after being given an

opportunity to perfect service. Further, the statute requires the affidavit be filed at the

time of commencement of the action. For these reasons, leave to supplement the petition

was denied.
Richland County, Case No. 15CA102                                                          4


      {¶9}   Because Petitioner failed to file an affidavit of his prior civil actions at the

time the petition was filed and because Petitioner failed to file his inmate account

statement, we grant the motion to dismiss the petition.



By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur




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