[Cite as Davis v. Banks, 2013-Ohio-1852.]

STATE OF OHIO, NOBLE COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

GEOFFREY A. DAVIS ) CASE NO. 12 NO 397 

) 

PETITIONER ) 

) 

VS. ) OPINION AND 

) JUDGMENT ENTRY 

ED BANKS, WARDEN, NOBLE ) 

CORRECTIONAL INSTITUTION ) 

) 

RESPONDENT ) 

CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus 

JUDGMENT: Dismissed. 

APPEARANCES: 

For Petitioner: Geoffrey A. Davis, Pro-se 

101 Oak Street 

Marietta, Ohio 45750 

For Respondent: Atty. Mike DeWine 

Attorney General of Ohio 

Atty. Gregory T. Hartke 

Assistant Ohio Attorney General 

615 West Superior Avenue, 11th Floor 

Cleveland, Ohio 44113-1899 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Joseph J. Vukovich 

Hon. Mary DeGenaro 

Dated: May 1, 2013
[Cite as Davis v. Banks, 2013-Ohio-1852.]

PER CURIAM. 

{¶1} Petitioner Geoffrey A. Davis was recently an inmate of Noble 

Correctional Institution in Noble County, Ohio. He was released on post-release 

control on January 3, 2013. Shortly before being released, he filed this petition for 

writ of habeas corpus. He argued that he should have been released on November 

30, 2012. Due to procedural errors and defects in the filing of the petition, and the 

fact that Petitioner is no longer incarcerated, we hereby dismiss the petition. 

{¶2} Petitioner was sentenced on September 23, 2005, in the Washington 

County Court of Common Pleas to an aggregate seven-year prison term for felonious 

assault and abduction, Case No. 04-CR-199. On March 15, 2006, he was sentenced 

in Washington County Court of Common Pleas Case No. 05-CR-192 to six months in 

prison for failure to appear at the sentencing hearing in Case No. 04-CR-199. The 

sentence in Case No. 05-CR-192 was to be served consecutively to the seven-year 

prison term in Case No. 04-CR-199, resulting in a total of seven years and six 

months in prison. The sentencing entry in Case No. 05-CR-192 was amended on 

September 18, 2006. Based on the aggregate prison term of the consecutive 

sentences, he was scheduled to be released on January 3, 2013. 

{¶3} On December 10, 2012, Petitioner filed his petition for writ of habeas 

corpus. He argued that he was entitled to early release pursuant to R.C. 2967.19. 

Respondent filed a motion to dismiss on January 7, 2013. 

{¶4} 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, to inquire into the cause of such 
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imprisonment, restraint, or deprivation.” 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 at law, such 

as a direct appeal or postconviction relief. In re Pianowski, 7th Dist. No. 03MA16, 

2003-Ohio-3881, ¶3; see also, State ex rel. Pirman v. Money, 69 Ohio St.3d 591, 

593, 635 N.E.2d 26 (1994). “Absent a patent and unambiguous lack of jurisdiction, a 

party challenging a court's jurisdiction has an adequate remedy at law by appeal.” 

Smith v. Bradshaw, 109 Ohio St.3d 50, 2006-Ohio-1829, 845 N.E.2d 516, ¶10. 

{¶5} If a person is in custody by virtue of a judgment of a court of record and 

the court had jurisdiction to render the judgment, the writ of habeas corpus will not be 

allowed. Tucker v. Collins, 64 Ohio St.3d 77, 78, 591 N.E.2d 1241 (1992). The 

burden is on the petitioner to establish a right to release. Halleck v. Koloski, 4 Ohio 

St.2d 76, 77, 212 N.E.2d 601 (1965); Yarbrough v. Maxwell, 174 Ohio St. 287, 288, 

189 N.E.2d 136 (1963). “Like other extraordinary-writ actions, habeas corpus is not 

available when there is an adequate remedy in the ordinary course of law.” In re 

Complaint for Writ of Habeas Corpus for Goeller, 103 Ohio St.3d 427, 2004-Ohio5579, 816 N.E.2d 594, ¶6. 

{¶6} Respondent has filed a motion to dismiss for failure to state a claim and 

for technical failures in the petition itself. A motion to dismiss for failure to state a 

claim upon which relief can be granted is procedural and tests the sufficiency of the 

complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 

545, 605 N.E.2d 378 (1992). Respondent argues that Petitioner failed to file all of the 
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required commitment papers, and failed to provide a detailed list of Petitioner's 

previous civil lawsuits. Respondent also contends that the petition must be 

dismissed because Petitioner has already been released from custody. 

Respondent's arguments are all well-taken. 

{¶7} R.C. 2725.04(D) requires the petitioner to file all the pertinent 

commitment papers along with the petition. Attaching only some of the paperwork is 

insufficient. If any required commitment papers are not included with the petition, it is 

defective and will be dismissed. State ex rel. Johnson v. Ohio Dept. of Rehab. & 

Corr., 95 Ohio St.3d 70, 2002–Ohio-1629, 765 N.E.2d 356. The Ohio Supreme 

Court has held that: 

These 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). 

{¶8} Failure to file all the pertinent commitment papers 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). 
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{¶9} Petitioner failed to attach the commitment papers in Washington County 

Case No. 04-CR-199. He also failed to include the original sentencing entry in Case. 

No. 05-CR-192. Without the full scope of Petitioner's commitment papers, it would 

be impossible for us to grant relief. Therefore, the petition fails due to this defect. 

{¶10} R.C. 2969.25(A) requires the Petitioner to file a complete affidavit of 

previously filed civil actions along with the other petition documents: “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 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.” 

{¶11} Petitioner filed the affidavit, but says that he filed no civil actions in the 

past five years. This is obviously inaccurate as he filed a previous petition for writ of 

habeas corpus in Noble County in May of 2012, as well as another habeas action in 

federal court in 2008 in the U.S. District Court for the Southern District of Ohio. 

Failure to file an accurate affidavit described in R.C. 2969.25 provides grounds for 

immediate dismissal of the petition. Fuqua v. Williams, 100 Ohio St.3d 211, 2003-

Ohio-5533, 797 N.E.2d 982. 

{¶12} Finally, habeas corpus relief is only available when the petitioner is 

entitled to immediate release from confinement. State ex rel. Jackson v. McFaul, 73 

Ohio St.3d 185, 188, 652 N.E.2d 746 (1995); R.C. 2725.17. Since Petitioner was 

released from prison on January 3, 2013, he is no longer in custody. Thus, he 

cannot obtain relief in habeas. The fact that Petitioner is subject to three years of 
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post-release control does not alter our decision. Post-release control does not 

sufficiently restrain a person's liberty to give rise to habeas corpus relief. In re 

Complaint for Writ of Habeas Corpus/Alternative Writ of Prohibition, 10th Dist. No. 

08AP-257, 2008-Ohio-4185, ¶16; Miller v. Walton, 163 Ohio App.3d 703, 840 N.E.2d 

222, 2005-Ohio-4855, ¶14; Harrod v. Harris, 1st Dist. No. C-000791 (May 11, 2001). 

{¶13} For all the aforementioned reasons, we dismiss the petition for writ of 

habeas corpus. Costs taxed against Petitioner. Final order. Clerk to serve notice on 

the parties as provided by the Ohio Rules of Civil Procedure. 

Waite, J., concurs. 

Vukovich, J., concurs. 

DeGenaro, P.J., concurs.