[Cite as State ex rel. Hall v. Turner, 2019-Ohio-1938.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY



THE STATE EX REL.
DAVID HALL, #A256-570,

        PETITIONER-APPELLANT,                              CASE NO. 9-19-01

        v.

NEIL TURNER, WARDEN,                                       OPINION

        RESPONDENT-APPELLEE.




                  Appeal from Marion County Common Pleas Court
                            Trial Court No. 2018-CV-0225

                                       Judgment Affirmed

                               Date of Decision: May 20, 2019




APPEARANCES:

        David Hall, Appellant

        Maura O’Neill Jaite for Appellee
Case No. 9-19-01


PRESTON, J.

       {¶1} Petitioner-appellant, David Hall (“Hall”), appeals the December 4,

2018 judgment of the Marion County Court of Common Pleas dismissing his

petition for a writ of habeas corpus against respondent-appellee, Warden Neil

Turner (“Turner”) of the North Central Correctional Complex. For the reasons that

follow, we affirm.

       {¶2} This matter originated with Hall’s 1975 conviction on one count of

murder in violation of R.C. 2903.02. (Doc. No. 1, Petitioner’s Ex. B). In that case,

Hall was sentenced to 15 years to life in prison. (Id.). Hall remained in prison until

May 25, 1984, at which point he was released on parole. (Doc. No. 1, Petitioner’s

Ex. D). However, sometime in 1988 or 1989, Hall’s parole was revoked and he was

returned to prison. (Appellant’s Brief at 2). Hall was paroled again on July 13,

1990. (Doc. No. 1, Petitioner’s Ex. D). In 1991, while on parole, Hall was indicted

on one count of felonious assault and one count of kidnapping. State v. Hall, 8th

Dist. Cuyahoga No. 63771, 1993 WL 389474, *1 (Sept. 30, 1993). Following a jury

trial, Hall was convicted of one count of felonious assault and sentenced to 11 to 15

years in prison. Id. at *3. (See Doc. No. 1, Petitioner’s Ex. A). The Eighth District

Court of Appeals affirmed Hall’s conviction and sentence for felonious assault.

Hall at *5.    Finally, Hall’s sentences for murder and felonious assault were




                                         -2-
Case No. 9-19-01


aggregated to form a term of 26 years to life in prison. (See Doc. No. 1, Petitioner’s

Ex. D).

       {¶3} On April 4, 2018, Hall filed a petition for a writ of habeas corpus against

Turner in the Marion County Court of Common Pleas. (Doc. No. 1). On June 4,

2018, Turner filed a motion to dismiss Hall’s petition under Civ.R. 12(B)(6). (Doc.

No. 3). Hall filed a memorandum in opposition to Turner’s motion to dismiss on

June 27, 2018. (Doc. No. 5).

       {¶4} On December 4, 2018, the trial court granted Turner’s motion and

dismissed Hall’s petition after concluding that Hall failed to attach to his petition a

copy of all of his commitment papers and that he failed to file with the court an

affidavit that complied with R.C. 2969.25(A). (Doc. No. 6).

       {¶5} Hall filed a notice of appeal on January 4, 2019. (Doc. No. 7). He

raises one assignment of error.

                               Assignment of Error

       R.C. §2725.01 clearly permits an individual to petition for writ for
       writ [sic] of habeas corpus if his maximum sentence has expired
       and that individual is being held unlawfully.

       {¶6} In his appellate brief, Hall focuses mainly on arguing the merits of his

petition for a writ of habeas corpus instead of advancing arguments attacking the

trial court’s reasons for dismissing his petition. However, Hall does make passing

references to “commitment entries” and R.C. 2969.25(A).            Thus, we elect to


                                         -3-
Case No. 9-19-01


interpret Hall’s appellate brief as challenging the trial court’s decision to dismiss his

petition for a writ of habeas corpus as being procedurally defective.

       {¶7} “‘A motion to dismiss for failure to state a claim upon which relief can

be granted tests the sufficiency of the complaint.’” Lloyd v. Robinson, 4th Dist.

Ross No. 14CA3452, 2014-Ohio-4977, ¶ 10, quoting Volbers-Klarich v.

Middletown Mgt., Inc., 125 Ohio St.3d 494, 2010-Ohio-2057, ¶ 11. “‘In order for a

trial court to dismiss a complaint under Civ.R. 12(B)(6) for failure to state a claim

upon which relief can be granted, it must appear beyond doubt that the plaintiff can

prove no set of facts in support of the claim that would entitle the plaintiff to the

relief sought.’” Id., quoting Ohio Bur. of Workers’ Comp. v. McKinley, 130 Ohio

St.3d 156, 2011-Ohio-4432, ¶ 12 and citing Rose v. Cochran, 4th Dist. Ross No.

11CA3243, 2012-Ohio-1729, ¶ 10. “When a trial court considers a Civ.R. 12(B)(6)

motion to dismiss, it must review only the complaint, accepting all factual

allegations contained in the complaint as true and making all reasonable inferences

in favor of the nonmoving party.” Johnson v. Robinson, 4th Dist. Ross No.

14CA3460, 2016-Ohio-3366, ¶ 13, citing State ex rel. Talwar v. State Med. Bd. of

Ohio, 104 Ohio St.3d 290, 2004-Ohio-6410, ¶ 5, Perez v. Cleveland, 66 Ohio St.3d

397, 399 (1993), and Estate of Sherman v. Millhon, 104 Ohio App.3d 614, 617 (10th

Dist.1995). “Furthermore, the trial court ‘cannot rely on evidence or allegations

outside the complaint to determine a Civ.R. 12(B)(6) motion.’” Id., quoting State


                                          -4-
Case No. 9-19-01


ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207 (1997). “This same standard

applies in cases involving claims for extraordinary relief, including habeas corpus.”

Id. at ¶ 14, citing Boles v. Knab, 130 Ohio St.3d 339, 2011-Ohio-5049, ¶ 2.

       {¶8} “‘Appellate courts review de novo a dismissal for the failure to state a

claim.’” Id. at ¶ 15, quoting Hammond v. Perry, 4th Dist. Hocking No. 12CA27,

2013-Ohio-3683, ¶ 11, citing Allen v. Bryan, 4th Dist. Hocking No. 12CA15, 2013-

Ohio-1917, ¶ 7 and Bartley v. Hearth & Care of Greenfield, L.L.C., 4th Dist.

Highland No. 12CA13, 2013-Ohio-279, ¶ 11. “‘In other words, an appellate court

affords no deference to a trial court’s decision and, instead, applies its own,

independent review to determine if the Civ.R. 12(B)(6) requirements were

satisfied.’” Id., quoting Hammond at ¶ 11, citing McDill v. Sunbridge Care Ents.,

Inc., 4th Dist. Pickaway No. 12CA8, 2013-Ohio-1618, ¶ 10 and Estep v. State, 4th

Dist. Ross No. 09CA3088, 2009-Ohio-4349, ¶ 5.

       {¶9} The procedures for filing petitions for writs of habeas corpus are

contained in R.C. 2725.04. R.C. 2725.04 provides, in relevant part:

       Application for the writ of habeas corpus shall be by petition, signed

       and verified either by the party for whose relief it is intended, or by

       some person for him, and shall specify:

       ***




                                         -5-
Case No. 9-19-01


      (D) A copy of the commitment or cause of detention of such person

      shall be exhibited, if it can be procured without impairing the

      efficiency of the remedy; or, if the imprisonment or detention is

      without legal authority, such fact must appear.

R.C. 2725.04(D).

      [C]ommitment papers are necessary for a complete understanding of

      the petition. * * * 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, 146 (1992). Failure to attach all pertinent

commitment papers “renders the petition fatally defective and subject to dismissal.”

Fugett v. Turner, 140 Ohio St.3d 1, 2014-Ohio-1934, ¶ 2, citing Day v. Wilson, 116

Ohio St.3d 566, 2008-Ohio-82, ¶ 4, citing Tisdale v. Eberlin, 114 Ohio St.3d 201,

2007-Ohio-3833, ¶ 6; State ex rel. Johnson v. Ohio Dept. of Rehab. & Corr., 95

Ohio St.3d 70, 71 (2002) (upholding the dismissal of Johnson’s petition for a writ

of habeas corpus because Johnson “did not attach all of his pertinent commitment

papers”) (Emphasis sic.).




                                         -6-
Case No. 9-19-01


       {¶10} The trial court did not err by dismissing Hall’s petition because Hall

did not comply with R.C. 2725.04(D). In this case, a review of the record reveals

that Hall’s parole was revoked at least once sometime in 1988 or 1989. Yet, Hall

failed to attach a copy of the 1988 or 1989 decision revoking his parole. “To comply

with [R.C. 2725.04(D)], an inmate must attach all pertinent papers that caused his

commitment, including * * * parole-revocation decisions.” State ex rel. Cannon v.

Mohr, 155 Ohio St.3d 213, 2018-Ohio-4184, ¶ 6, citing State ex rel. Finfrock v.

Ohio Adult Parole Auth., 80 Ohio St.3d 639, 640 (1998). See Dykes v. Miller, 7th

Dist. Belmont No. 12 BE 1, 2012-Ohio-2473, ¶ 11 (“Since Dykes is asking to be

released from prison, the parole records * * * are necessary to determine whether

Dykes is entitled to habeas relief and immediate release from confinement.”).

Because Hall failed to attach copies of all of his pertinent commitment papers to his

petition, his petition was fatally defective. Accordingly, the trial court did not err

by dismissing his petition.

       {¶11} Furthermore, even if Hall had attached copies of all of his relevant

commitment papers, the trial court would not have erred by dismissing his petition

for a writ of habeas corpus because he did not comply with R.C. 2969.25(A). R.C.

2969.25(A) provides:

       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


                                         -7-
Case No. 9-19-01


      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. The affidavit shall include all of the

      following for each of those civil actions or appeals:

      (1) A brief description of the nature of the civil action or appeal;

      (2) The case name, case number, and the court in which the civil

      action or appeal was brought;

      (3) The name of each party to the civil action or appeal;

      (4) The outcome of the civil action or appeal, including whether the

      court dismissed the civil action or appeal as frivolous or malicious

      under state or federal law or rule of court, whether the court made an

      award against the inmate or the inmate’s counsel of record for

      frivolous conduct under section 2323.51 of the Revised Code, another

      statute, or a rule of court, and, if the court so dismissed the action or

      appeal or made an award of that nature, the date of the final order

      affirming the dismissal or award.

“‘“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. Perotti v. Clipper,

151 Ohio St.3d 132, 2017-Ohio-8134, ¶ 3, quoting State ex rel. McGrath v.

McDonnell, 126 Ohio St.3d 511, 2010-Ohio-4726, ¶ 1, quoting State ex rel. White


                                          -8-
Case No. 9-19-01


v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262, ¶ 5. “R.C. 2969.25(A) * * * [does

not] permit substantial compliance.” State ex rel. Manns v. Henson, 119 Ohio St.3d

348, 2008-Ohio-4478, ¶ 4, citing Martin v. Ghee, 10th Dist. Franklin No. 01AP-

1380, 2002 WL 523000, *3 (Apr. 9, 2002).

       {¶12} Here, Hall attempted to comply with R.C. 2969.25(A) by attaching a

document to his petition disclosing that he had previously filed a complaint in the

Tenth District Court of Appeals requesting a writ of mandamus. (Doc. No. 1,

Petitioner’s Ex. CC). See State ex rel. Hall v. Imbrogno, 10th Dist. Franklin No.

16AP-754, 2018-Ohio-929. However, Hall failed to disclose that he had filed an

earlier complaint in the Tenth District Court of Appeals requesting a writ of

mandamus. See State ex rel. Hall v. Mohr, 10th Dist. Franklin No. 13AP-588, 2013-

Ohio-5779. Hall filed this earlier request for a writ of mandamus on July 9, 2013,

which was within the five years preceding the filing of his petition in this case on

April 4, 2018.     See id. at ¶ 8.   Furthermore, Hall failed to disclose that he

unsuccessfully appealed the Tenth District’s dismissal of his request for a writ of

mandamus to the Supreme Court of Ohio. See State ex rel. Hall v. Mohr, 140 Ohio

St.3d 297, 2014-Ohio-3735. Therefore, because Hall failed to strictly comply with

R.C. 2969.25(A), his petition for a writ of habeas corpus was subject to dismissal.

Accordingly, the trial court did not err by dismissing Hall’s petition.

       {¶13} Hall’s assignment of error is overruled.


                                         -9-
Case No. 9-19-01




       {¶14} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                Judgment Affirmed

ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.

/jlr




                                        -10-
