[Cite as Perry v. Greene, 2013-Ohio-1879.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

MORRIS J. PERRY, SR., 

 PETITIONER, 

V. 

JERRY GREENE, MAHONING COUNTY 

SHERIFF, 

 RESPONDENT. 

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CASE NO. 13 MA 33 

OPINION 

AND 

JUDGMENT ENTRY 

CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus 

JUDGMENT: Dismissed 

APPEARANCES: 

For Petitioner Morris J. Perry, Sr. Pro-Se 

#195 

110 Fifth Avenue 

Youngstown, Ohio 44503 

For Respondent Paul Gains 

Prosecutor 

Ralph M. Rivera 

Assistant Prosecutor 

21 W. Boardman St., 6th Floor 

Youngstown, Ohio 44503 

JUDGES: 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Hon. Mary DeGenaro 

 

 

 Dated: April 29, 2013 
[Cite as Perry v. Greene, 2013-Ohio-1879.]

PER CURIAM. 

{¶1} Petitioner Morris Perry Sr. has filed a pro se petition for a writ of habeas 

corpus against Respondent Jerry Greene, Mahoning County Sheriff. The sheriff has 

filed a motion to dismiss. 

{¶2} Perry was convicted in Youngstown Municipal Court of possessing 

criminal tools and attempted theft. The trial court sentenced him to ninety days 

electronically monitored house arrest, two years of probation, and a fine of $100 for 

each offense. Perry appealed his conviction to this court arguing insufficiency of the 

evidence. 

{¶3} Following this court’s affirmance of his conviction, State v. Perry, 7th 

Dist. No. 11 MA 129, 2012-Ohio-5574, the trial court set a status hearing for which 

Perry failed to appear. The court issued a bench warrant and Perry was subsequently 

incarcerated in the Mahoning County Jail. The court granted electronically monitored 

house arrest upon the posting of a bond. Apparently unable to make bond, Perry filed 

the present petition arguing that he has served in excess of the maximum amount of 

jail term allowed for two fourth-degree misdemeanor convictions. 

{¶4} There are three reasons Perry’s petition must be dismissed. First, R.C. 

2725.04 requires that: 

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. 

{¶5} Perry has failed to attach copies of his commitment papers to his 

petition as required by R.C. 2725.04(D). Failure to attach copies of commitment 

papers, such as the judgment entry of sentence, as part of the original filing of the 

petition for habeas corpus requires the dismissal of the petition. Bloss v. Rogers, 65 
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Ohio St.3d 145, 146, 602 N.E.2d 602 (1992). 

{¶6} Second, R.C. 2969.25(A) requires an inmate, at the time of 

commencing a civil action against a government entity, to “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.” The Ohio 

Supreme Court has held that the requirements in R.C. 2969.25 apply to state habeas 

corpus actions and that even belated attempts to file the required affidavit do not 

excuse his noncompliance. Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio–5533, 

797 N.E.2d 982, ¶ 6-9 (“A habeas corpus action is a civil action and therefore the 

provisions of R.C. 2969.21 through 2969.27 are applicable to such action.”). 

{¶7} Here, Perry has not filed an affidavit as required by R.C. 2969.25. Thus, 

as mentioned, compliance with the provisions of R.C. 2969.25 is mandatory and the 

failure to satisfy the statutory requirements is grounds for dismissal. State ex rel. 

Washington v. Ohio Adult Parole Auth., 87 Ohio St.3d 258, 259, 719 N.E.2d 544 

(1999); State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 422, 696 N.E.2d 

594 (1998). 

{¶8} Third, “[p]etitions for habeas corpus should be dismissed as moot when 

the inmate has been released from incarceration.” White v. Wolfe, 7th Dist. No. 305, 

2003-Ohio-3883, at ¶ 13, citing Pewitt v. Lorain Correctional Institution (1992), 64 

Ohio St.3d 470, 472, 597 N.E.2d 92 (1992). And we “must consider presently existing 

facts and conditions when determining whether to issue the writ of habeas corpus.” 

Id. at ¶ 12, citing State ex rel. Rhinehart v. Celebreeze (1946), 147 Ohio St. 24, 26, 

67 N.E.2d 776. Counsel for the sheriff has attached to its motion to dismiss a 

Mahoning County Sheriff’s Department Inmate Listing dated April 10, 2013. Perry’s 

name does not appear on that list, indicating that he has been released from 

incarceration. 

{¶9} For the foregoing reasons, the sheriff’s motion to dismiss is granted and 

Perry’s petition for writ of habeas corpus is hereby dismissed. 

{¶10} Costs taxed against Perry. Final order. Clerk to serve notice on the 

parties as required by the Ohio Rules of Civil Procedure. 
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Donofrio, J. concurs. 

Vukovich, J. concurs. 

DeGenaro, P.J. concurs.