[Cite as State ex. rel. Hairston v. Franklin Cty. Court of Common Pleas, 2018-Ohio-148.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State ex rel. Rico Isaih Hairston,                     :

                 Petitioner,                           :

v.                                                     :                         No. 17AP-502

Franklin County Court of Common Pleas,                 :                   (REGULAR CALENDAR)

                 Respondents.                          :


                                              DECISION

                                    Rendered on January 16, 2018


                 Rico Isaih Hairston, pro se.

                                          IN HABEAS CORPUS

HORTON, J.
        {¶ 1} Relator, Rico Isaih Hairston, commenced this original action on
July 12, 2017, requesting a writ of habeas corpus ordering his immediate release from
custody. Almost one month later on August 1, 2017, petitioner filed a motion to appoint
counsel and asserted he could not afford an attorney.
        {¶ 2}    Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate who issued a decision on August 23, 2017,
including findings of fact and conclusions of law, which is appended hereto. The
magistrate found that relator failed to comply with the mandatory requirements of
R.C. 2969.25(C), in that petitioner did not pay the filing fee nor did he file a motion to
proceed in forma pauperis with the attending required documentation, i.e., a statement of
the amount in the inmate's account for each of the preceding six months as certified by
the institutional cashier, and a statement of all other cash and things of value owned by
the inmate. Therefore, the magistrate recommended that this court sua sponte dismiss
this action and deny his motion to appoint counsel.
No. 17AP-502                                                                              2

       {¶ 3} Relator has not filed an objection to the magistrate's decision. Instead, on
August 30, 2017, relator filed a motion for leave to amend his complaint in an effort to
comply with the mandatory requirements of R.C. 2969.25(C). We have held that a relator
"cannot cure this deficiency by attempting to comply with the statutory requirements after
the fact." State ex rel. Swain v. Ohio Adult Parole Auth., 10th Dist. No. 16AP-519, 2017-
Ohio-517, ¶ 5, aff'd., State ex rel. Swain v. Ohio Adult Parole Auth., Slip Opinion No.
2017-0332, 2017-Ohio-9175, holding that an inmate's belated attempt to comply with R.C.
2969.25(C) " 'does not excuse his noncompliance.' " Id. at ¶ 4, quoting Fuqua v. Williams,
100 Ohio St.3d 211, 2003-Ohio-5533, ¶ 9.
       {¶ 4} As such, finding no error of law or other defect on the face of the
magistrate's decision, this court adopts the magistrate's decision as our own, including the
findings of fact and conclusions of law. In accordance with the magistrate's decision, we
sua sponte dismiss this action. Relator's remaining pending motions are thereby rendered
moot. Costs are assessed against relator.
                                                              Action sua sponte dismissed.

                      SADLER and LUPER SCHUSTER, JJ., concur.
                              _________________
No. 17AP-502                                                                              3

                                     APPENDIX

                            IN THE COURT OF APPEALS OF OHIO

                               TENTH APPELLATE DISTRICT


State ex rel. Rico Isaih Hairston,           :

              Petitioner,                    :

v.                                           :                     No. 17AP-502

Franklin County Court of Common Pleas,       :                (REGULAR CALENDAR)

              Respondents.                   :



                            MAGISTRATE'S DECISION

                                Rendered on August 23, 2017



              Rico Isaih Hairston, pro se.


                                     IN HABEAS CORPUS

       {¶ 5} Petitioner, Rico Isaih Hairston, has filed this original action requesting this
court issue a writ of habeas corpus ordering his immediate release from custody.
Findings of Fact:
       {¶ 6} 1. On July 12, 2017, petitioner filed this habeas corpus petition asserting
that he is currently being held in custody despite the fact that he was not permitted to be
present during his arraignment and never signed a waiver.
       {¶ 7} 2. At the time he filed this action, petitioner did not pay the filing fee nor
did he file a motion to proceed in forma pauperis with the attending documentation
required by R.C. 2969.25(C).
       {¶ 8} 3. On August 1, 2017, petitioner filed a motion to appoint counsel and
asserted he could not afford an attorney.
No. 17AP-502                                                                                             4


Conclusions of Law:
        {¶ 9} Because petitioner has failed to comply with the mandatory requirements of
R.C. 2969.25(C), it is this magistrate's decision that this court should sua sponte dismiss
his habeas corpus action. Further, this court should deny his motion to appoint counsel.
        {¶ 10} In regard to filing fees, R.C. 2969.25(C) and 2969.22 distinguish between
paying the full amount of filing fees upon filing (referred to as "prepayment" of fees) and
paying the fees pursuant to periodic deductions from the inmate's account maintained by
the prison.1 Under R.C. 2969.25(C), an inmate who seeks waiver of prepayment on
grounds of indigency must file an affidavit that includes: (1) a statement of the amount in
the inmate's account for each of the preceding six months as certified by the institutional
cashier, and (2) a statement of all other cash and things of value owned by the inmate.
        {¶ 11} Compliance with the provisions of R.C. 2969.25 is mandatory and failure to
satisfy the statutory requirements is grounds for dismissal of the action. State ex rel.
Washington v. Ohio Adult Parole Auth., 87 Ohio St.3d 258 (1999); State ex rel.
Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421 (1998); State ex rel. Alford v. Winters, 80
Ohio St.3d 285 (1997).
        {¶ 12} In State ex rel. Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, the
Supreme Court of Ohio affirmed the judgment of the court of appeals from Medina
County which had dismissed the complaint of George D. Pamer, an inmate at Mansfield
Correctional Institution, for his failure to comply with the requirements of R.C.
2969.25(C). Specifically, the court stated:
                Pamer's cashier statement did not set forth the account
                balance for the month immediately preceding his mandamus
                complaint - August 2005. See R.C. 2969.25(C)(1), which
                requires an inmate filing a civil action against a government
                employee seeking waiver of prepayment of court filing fees to
                file a "statement that sets forth the balance in the inmate
                account for each of the preceding six months, as certified by
                the institutional cashier." Pamer's failure to comply with R.C.
                2969.25(C)(1) warranted dismissal of the complaint. State ex


1Under the statute, when the inmate has submitted the requisite affidavit of indigency, the clerk charges

the inmate's account for funds in excess of ten dollars. Following that payment, all income in the inmate's
account (excluding the ten dollars) is forwarded to the clerk each month until the fees are paid.
No. 17AP-502                                                                             5

                rel. Foster v. Belmont Cty. Court of Common Pleas, 107 Ohio
                St.3d 195, 2005-Ohio-6184, 837 N.E.2d 777, ¶ 5.

                In addition, nothing in R.C. 2969.25 required the court of
                appeals to afford Pamer the opportunity to pay the requisite
                filing fee before dismissing the case when Pamer expressly
                requested waiver of prepayment of those fees.

                Finally, because Pamer did not prevail and did not establish
                his indigency, the court of appeals did not abuse its discretion
                in ordering him to pay the costs of the proceeding. See State
                ex rel. Frailey v. Wolfe (2001), 92 Ohio St.3d 320, 321, 750
                N.E.2d 164; Civ.R. 54(D).

Id. at ¶ 5-7.
        {¶ 13} Likewise, in State ex rel. Ridenour v. Brunsman, 117 Ohio St.3d 260, 2008-
Ohio-854, the Supreme Court affirmed the judgment of the Ross County Court of Appeals
which had dismissed the complaint filed by William L. Ridenour because of his failure to
comply with R.C. 2969.25(C).           In that case, Ridenour had filed a motion for
reconsideration attaching a statement setting forth his inmate account balance for the six
months preceding the filing of his complaint; however, the statement was not certified by
the institutional cashier.
        {¶ 14} In affirming the judgment of the appellate court, the Supreme Court stated:
                "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, 788 N.E.2d 634, ¶ 5. Ridenour failed to
                comply with R.C. 2969.25(C)(1), which requires an inmate
                filing a civil action against a government employee seeking
                waiver of prepayment of court filing fees to file with the
                complaint a "statement that sets forth the balance in the
                inmate account of the inmate for each of the preceding six
                months, as certified by the institutional cashier."

                Moreover, although Ridenour claims that the court erred in
                failing to grant him leave to amend his complaint to comply
                with R.C. 2969.25(C)(1), he never filed a motion to amend
                his complaint. Instead, he filed a motion for reconsideration,
                which was "a nullity because his mandamus action was filed
                originally in the court of appeals, rendering App.R. 26(A)
                inapplicable." State ex rel. Washington v. Crush, 106 Ohio
                St.3d 60, 2005-Ohio-3675, 831 N.E.2d 432, ¶ 5.
No. 17AP-502                                                                                6


Id. at ¶ 5-6.
       {¶ 15} Pursuant to the above-cited authority and because petitioner cannot cure
this deficiency now or at a later date, it is the magistrate's decision that this court should
dismiss petitioner's complaint.      Inasmuch as petitioner did not prevail and did not
establish indigency, this court should order petitioner to pay the costs of the proceedings.
Finally, this court should deny petitioner's request for the appointment of counsel because
a habeas corpus petitioner has no constitutional right to counsel See generally State ex
rel. Johnson v. Ohio Adult Parole Auth., 4th Dist. No. 99 C-84 2678 (Mar. 29, 2000).


                                                /S/ MAGISTRATE
                                                STEPHANIE BISCA




                                 NOTICE TO THE PARTIES

                Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
                error on appeal the court's adoption of any factual finding or
                legal conclusion, whether or not specifically designated as a
                finding of fact or conclusion of law under Civ.R.
                53(D)(3)(a)(ii), unless the party timely and specifically objects
                to that factual finding or legal conclusion as required by Civ.R.
                53(D)(3)(b).
