[Cite as Miller v. Bradshaw, 2011-Ohio-5380.]


            [Nunc pro tunc opinion. Please see original at 2011-Ohio-4972.]

                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                        JUDGES:
WAYNE MILLER                                    :       Hon. W. Scott Gwin, P.J.
                                                :       Hon. William B. Hoffman, J.
                                  Petitioner    :       Hon. John W. Wise, J.
                                                :
-vs-                                            :
                                                :       Case No. 2011-CA-79
WARDEN MARGERIT(SIC)                            :
BRADSHAW                                        :
                                                :       OPINION
                               Respondent       :       NUNC PRO TUNC
                                                :




CHARACTER OF PROCEEDING:                            Writ of Habeas Corpus


JUDGMENT:                                           Dismissed


DATE OF JUDGMENT ENTRY:                             October 19, 2011


APPEARANCES:

For Petitioner                                      For Respondent

WAYNE MILLER PRO SE
P.O. Box 8107
Mansfield, OH 44901
[Cite as Miller v. Bradshaw, 2011-Ohio-5380.]


Gwin, P.J.

        {1}     Petitioner, Wayne Miller, has filed a petition for Writ of Habeas Corpus

alleging unlawful detention based upon his contention that the initial complaint in his

case lacked a proper determination of probable cause.           We find it unnecessary to

address the claims raised because Petitioner has failed to comply with the procedural

requirements for a habeas petition.

        {2}     A review of the complaint reveals Petitioner has failed to attach the

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

        {3}    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 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. See also,

Boyd v. Money, 82 Ohio St.3d 388, wherein the Supreme Court held, “Habeas corpus

petitioner's failure to attach pertinent commitment papers to his petition rendered the

petition fatally defective, and petitioner's subsequent attachment of commitment papers

to his post-judgment motion did not cure the defect.” R.C. § 2725.04(D).

        {4}    We find failure to include all pertinent entries has made a complete

understanding of the Petition impossible.

        {5}     We further note a “Court of Appeals [is] required to dismiss [a] petition for

habeas corpus sua sponte, where defendant failed to verify the petition for habeas
Richland County, Case No. 2011-CA-79                                                            3


corpus, support his complaint with an affidavit specifying the details of the claim, attach

a copy of commitment or cause of detention to petition, name the correct Respondent,

or attach an affidavit describing each civil action or appeal filed by the Relator within

previous five years in any state or federal court. R.C. 2725.04(B, D), 2969.25.” Melton v.

State 2002 WL 31040689 (Ohio App. 8 Dist.).

       {6}       The petition filed does not contain an affidavit detailing Petitioner's prior

civil actions.

       {7}       Petitioner's failure to include these items requires dismissal of this case.



By Gwin, P.J.,

Hoffman, J., and

Wise, J., concur



                                                   _________________________________
                                                   HON. W. SCOTT GWIN

                                                   _________________________________
                                                   HON. WILLIAM B. HOFFMAN

                                                   _________________________________
                                                   HON. JOHN W. WISE
WSG:clw 0914
              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                               FIFTH APPELLATE DISTRICT

WAYNE MILLER                                  :
                                              :
                                Petitioner    :
                                              :
                                              :
-vs-                                          :        JUDGMENT ENTRY
                                              :        NUNC PRO TUNC
WARDEN MARGERIT(SIC)                          :
BRADSHAW                                      :
                                              :
                                              :
                              Respondent      :        CASE NO. 2011-CA-79

       It has come to the court’s attention that the basis for Petitioner’s Complaint was

incorrectly listed in the original opinion. The court had multiple habeas corpus opinions

in process at the same time as the instant opinion and inadvertently transposed the

reasons for the petitions.

   In order to correct our scrivener’s error, we reissue the opinion Nunc Pro Tunc to

accurately reflect the basis of Petitioner’s complaint. The correction is contained in

paragraph one of the first full page of the opinion.

   In light of the foregoing, we hereby journalize the corrected opinion to speak Nunc

Pro Tunc for the court.

   IT IS SO ORDERED.

                                                  _________________________________
                                                  HON. W. SCOTT GWIN

                                                  _________________________________
                                                  HON. WILLIAM B. HOFFMAN

                                                  _________________________________
                                                  HON. JOHN W. WISE
