[Cite as Penalosa v. Larose, 2018-Ohio-2917.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                           IN RE: CELESTINO OF PENALOSA,

                                                 Petitioner,

                                                     v.

                           CHRISTOPHER LAROSE, WARDEN,

                                                Respondent.


                        OPINION AND JUDGMENT ENTRY
                                        Case No. 18 MA 0034


                                        Writ of Habeas Corpus

                                         BEFORE:
                  Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


                                                JUDGMENT:
                                                 Dismissed


Celestino Penalosa, #60240-060, Core Civic, fka Northeast Ohio Correctional Center,
2240 Hubbard Road in Youngstown, Ohio 44505, Pro se, and

Christopher Larose, Warden, Core Civic, fka Northeast Ohio Correctional Center, 2240,
Hubbard Road in Youngstown, Ohio 44505, Pro se.

                                                   Dated:
                                                July 17, 2018
Case No. 18 MA 0034                                                                    –2–




PER CURIAM.

       {¶1}   Petitioner Celestino of Penalosa, proceeding on his own behalf, has filed a
petition for a writ of habeas corpus. The petition alleges that he is being imprisoned and
restrained of his liberty at the Northeast Ohio Correctional Center (NEOCC), operated
by Core Civic, located at 2240 Hubbard Road in Youngstown, Mahoning County, Ohio.
       {¶2}   The writ of habeas corpus is an extraordinary writ and will only be issued
in certain circumstances of unlawful restraint of a person’s liberty where there is no
adequate legal remedy of law. In re Pianowski, 7th Dist. No. 03 MA 16, 2003-Ohio-
3881; State ex rel. Pirman v. Money, 69 Ohio St.3d 591, 593, 635 N.E.2d 26 (1994).
The burden is on the Petitioner to establish a right to release. Halleck v. Koloski, 4 Ohio
St.2d 76, 212 N.E.2d 601 (1965).
       {¶3}   The habeas petition is deficient on several grounds. First, the petition
does not allege an unlawful restraint. R.C. 2725.01 provides: “Whoever is unlawfully
restrained of his liberty, or entitled to the custody of another, of which custody such
person is unlawfully deprived, may prosecute a writ of habeas corpus * * *.” (Emphasis
added.)   The petition states that he is “imprisoned and restrained of his liberty.”
Petitioner does not claim that he is being restrained unlawfully, and therefore, he has
failed to allege the first and primary element of a habeas action.
       {¶4}   Second, Petitioner did not attach his commitment papers to the petition.
R.C. 2725.04 requires the following:

              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:
              ***
              (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.
Case No. 18 MA 0034                                                                      –3–


       {¶5}   The Ohio Supreme Court has explained, “[t]hese commitment 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, 146,
602 N.E.2d 602 (1992). The papers must be included with the petition and failure to file
them cannot be cured by filing them at some later point in the habeas proceedings.
Boyd v. Money, 82 Ohio St.3d 388, 389, 696 N.E.2d 568 (1998); Davis v. Banks, 7th
Dist. No. 12 NO 397, 2013-Ohio-1852, ¶ 8.
       {¶6}   Third, it does not contain an affidavit of prior civil actions. When an inmate
files a civil action against a governmental entity or employee, R.C. 2969.25(A) requires
the petitioner to file an affidavit with the petition describing all civil actions and appeals
that petitioner has filed in state or federal court within the past five years. The Ohio
Supreme Court has held that the “requirements of R.C. 2969.25 are mandatory and
failure to comply with them requires dismissal of an inmate's complaint.” State ex rel.
Hall v. Mohr, 140 Ohio St.3d 297, 2014-Ohio-3735, 17 N.E.3d 581, ¶ 4.
       {¶7}   Fourth, Petitioner has alleged facts that defeat our jurisdiction over the
petition. Petitioner alleges he is being restrained at NEOCC by Core Civic. This Court
has recognized and takes judicial notice of the fact that NEOCC is a facility housing, at
least in part, federal inmates awaiting action in federal court. Perotti v. Warden, 7th Dist.
No. 05-MA-102, 2005-Ohio-3780. See also Brown v. Ohio, N.D.Ohio No. 1:15 CV 380,
2015 WL 5165480 (Aug. 28, 2015); Core Civic, Northeast Ohio Correctional Center,
http://www.corecivic.com/facilities/northeast-ohio-correctional-center#jc-details
(accessed Apr. 3, 2018). The Ohio Supreme Court has held that:

              State courts lack jurisdiction to determine a habeas corpus petition
       filed by an inmate of a federal prison. See, e.g., Ex Parte Bushnell (1858),
       8 Ohio St. 599, 601; Perotti v. Northeast Ohio Correctional Corp. Warden,
       Mahoning App. No. 05-MA-102, 2005-Ohio-3780, ¶ 4 (“this state court
       lacks jurisdiction to determine a habeas petition filed by an inmate of a
Case No. 18 MA 0034                                                                    –4–


       facility housing federal prisoners”); State v. Goist, Trumbull App. No. 2002-
       T-0136, 2003-Ohio-3549, ¶ 25 (state common pleas court lacked
       jurisdiction over federal inmate housed in another state); R.C. 2725.03.

Perotti v. Stine, 113 Ohio St.3d 312, 2007-Ohio-1957, 865 N.E.2d 50, ¶ 5 (2007).
       {¶8}   Because this Court is a state court, it is legally incompetent to determine a
habeas corpus petition filed by an inmate in federal custody, and petitioner has given us
no indication that he is other than a federal inmate in a federal facility.
       {¶9}   Accordingly, we sua sponte dismiss the petition for a writ of habeas
corpus for lack of jurisdiction and for the aforementioned procedural faults.
       {¶10} Final order.     Clerk to serve notice as provided by the Rules of Civil
Procedure. Costs taxed to Petitioner.
       {¶11} Copy to counsel or unrepresented party, as well as the U.S. Attorney’s
Office, 100 Federal Plaza East, Youngstown, Ohio 44503 and Ohio Attorney General,
Criminal Justice Section, 150 East Gay Street, 16th Floor, Columbus, Ohio 43215.




JUDGE GENE DONOFRIO


JUDGE CHERYL L. WAITE


JUDGE CAROL ANN ROBB
