[Cite as Smith v. Buchanan, 2014-Ohio-359.]

STATE OF OHIO, NOBLE COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

WILLIAM E. SMITH ) CASE NO. 13 NO 407 

) 

PETITIONER ) 

) 

VS. ) OPINION AND 

) JUDGMENT ENTRY 

WARDEN TIMOTHY BUCHANAN ) 

NOBLE CORRECTIONAL ) 

INSTITUTION ) 

) 

RESPONDENT ) 

CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus 

JUDGMENT: Dismissed. 

APPEARANCES: 

For Petitioner: William E. Smith, Pro se 

#273-391 

Noble Correctional Institution 

15708 McConnellsville Road 

Caldwell, Ohio 43724 

For Respondent: Atty. Michael DeWine 

Attorney General of Ohio 

Atty. Marc S. Davis 

Assistant Ohio Attorney General 

Criminal Justice Section 

150 East Gay Street, 16th Floor 

Columbus, Ohio 43215 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Joseph J. Vukovich 

Hon. Mary DeGenaro 

Dated: January 27, 2014
[Cite as Smith v. Buchanan, 2014-Ohio-359.]

PER CURIAM. 

{¶1} Petitioner William E. Smith is an inmate at the Noble Correctional 

Institution in Noble County, Ohio. He has filed a petition for writ of habeas corpus 

against Respondent Timothy Buchanan, the warden at that institution. Respondent 

has filed a motion to dismiss the petition. Respondent's motion is hereby sustained 

and the petition is dismissed. 

Background

{¶2} On January 7, 1993, Petitioner was indicted by the Richland County 

Grand Jury for one count of felonious assault in Common Pleas Case No. 92CR626. 

Petitioner entered a no contest plea on January 27, 1993. The trial court entered a 

finding of guilt and ordered a presentence investigation. The state agreed to 

recommend that Petitioner be placed on probation. Petitioner failed to appear for the 

presentence investigation and the trial court sentenced him to a term of incarceration 

for an indefinite period of five to fifteen years on April 7, 1993. See State v. Smith, 

5th Dist. Nos. 94-CA-62, 94-CA-64, 1995 WL 557408 (Aug. 28, 1995). On January 

4, 1994, the trial court granted Petitioner's motion for shock probation and released 

him from prison. After he violated the terms of his shock probation, his original 

sentence was reimposed in July of 1994. State v. Smith, 5th Dist. No. 02CA67, 

2003-Ohio-5592. The petition indicates that Petitioner was paroled again, that he 

violated the terms of parole, and that he was recently ordered by the Ohio Adult 

Parole Authority to serve 42 more months of his prison term. On October 24, 2013, 

Petitioner filed this petition for writ of habeas corpus. Respondent filed a motion to 
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dismiss on December 6, 2013. Petitioner filed a motion in opposition to the motion to 

dismiss on December 20, 2013. 

Analysis

{¶3} 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 

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, citing State ex rel. Pirman v. Money, 69 Ohio St.3d 591, 593 

635 N.E.2d 26 (1994). 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). 

{¶4} Respondent has filed a Civ.R. 12(B)(6) motion to dismiss for failure to 

state a claim. The purpose of such a motion is to test the sufficiency of the 

complaint. State el rel. Boggs v. Springfield Local School Dist. Bd. of Ed., 72 Ohio 

St.3d 94, 647 N.E.2d 788 (1995). In order for a case to be dismissed for failure to 

state a claim, it must appear beyond doubt that, even assuming all factual allegations 
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in the complaint are true, the nonmoving party can prove no set of facts that would 

entitle that party to the relief requested. State ex rel. Pirman, supra; Keith v. Bobby, 

117 Ohio St.3d 470, 2008-Ohio-1443, 884 N.E.2d 1067, ¶10. If the petition does not 

meet the requirements of a properly filed petition for writ of habeas corpus, or fails to 

state a facially viable claim, it may be dismissed on motion by the respondent or sua 

sponte by the court. Flora v. State, 7th Dist. No. 04 BE 51, 2005-Ohio-2382, ¶5. 

{¶5} As mentioned above, R.C. 2725.01, et seq., governs habeas filings, 

and failure to satisfy these statutory requirements is generally fatal to the petition. 

One of the requirements is that the petitioner must file all pertinent commitment 

papers relevant to the arguments being raised in the petition. R.C. 2725.04(D). The 

commitment papers are necessary for a complete understanding of the petition. 

Bloss v. Rogers, 65 Ohio St.3d 145, 146, 602 N.E.2d 602 (1992). Failure to file the 

necessary commitment papers requires dismissal of the petition. Id. Petitioner's 

arguments are all based on his presumption that he has spent too much time in 

prison for a felonious assault conviction. To even begin to examine such an 

argument, we would need evidence of the terms of his original sentence, and the 

results of all the subsequent parole violations and the corresponding commitment 

papers. That information is not included in this petition. For this reason, the petition 

must be dismissed. 

{¶6} When an inmate files a civil action or appeal against a government 

entity or employee, R.C. 2969.25(A) requires the petitioner to file an affidavit with the 

petition describing all civil actions and appeals he or she has filed in state or federal 
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court within the past five years. One of the reasons for this requirement is to enable 

the court to determine whether the current filing is malicious or vexatious. R.C. 

2969.25(B). Compliance with R.C. 2969.25(A) is mandatory, and 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). 

{¶7} In Petitioner's motion in opposition to the motion to dismiss, he states 

that he believes he filed the affidavit. It is not found in the record in this case. 

Petitioner recently filed a document that purports to explain why he, in fact, did not 

file the required affidavit. Belated attempts to file the affidavit or to correct 

noncompliance with R.C. 2969.25(A) do not prevent dismissal of the habeas petition. 

Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, 797 N.E.2d 982, ¶9. He 

also averred that he filed no civil actions or appeals in the last five years. Oddly, 

within the same document he refers to a case he recently filed in a federal district 

court in West Virginia, and in his petition he also refers to a habeas action he filed in 

2013 in the Fifth District Court of Appeals, which has already been dismissed by that 

court. State ex rel. Smith v. Richards, 5th Dist. No. 13CA46, 2013-Ohio-4667. 

Petitioner obviously had cases he was required to declare in an affidavit of prior civil 

actions. His failure to include the affidavit as part of his petition for writ of habeas 

corpus is yet one more reason to dismiss the petition. 

{¶8} R.C. 2969.22 requires state inmates to pay in advance the full filing 

fees in civil actions and appeals commenced in state court (other than the Court of 

Claims). In order to obtain a waiver of the requirement to prepay filing fees, the 
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inmate must comply with R.C. 2969.25(C) and file a fee waiver request affidavit, an 

inmate account statement that is certified by the institutional cashier, and an asset 

disclosure statement. The requirements of R.C. 2969.25(C) are mandatory. Failure 

to comply requires dismissal of the petition. State ex rel. Alford v. Winters, 80 Ohio 

St.3d 285, 685 N.E.2d 1242 (1997). Furthermore, the documents must be part of the 

initial filing of the petition and cannot later be added or amended to the petition. 

Hazel v. Knab, 130 Ohio St.3d 22, 2011-Ohio-4608, 955 N.E.2d 378, ¶1 

(“subsequent filing of the statement [does] not cure the defect.”). Petitioner has not 

paid the filing fee in full and has not properly requested a waiver of the filing fee. 

More specifically, he did not file a statement setting forth the balance in his inmate 

account for each of the preceding six months, certified by the institutional cashier. 

R.C. 2969.25(C)(1). This petition for writ of habeas corpus does not meet the 

requirements of R.C. 2969.25(C). For this third reason, the petition also must be 

dismissed. 

{¶9} We cannot reach any of the substantive arguments in the petition due 

to the many procedural deficiencies cited above. 

Conclusion

{¶10} We hereby sustain Respondent's motion to dismiss the petition for writ 

of habeas corpus. Petitioner committed a number of procedural errors that mandate 

dismissal of the petition. He failed to file the pertinent commitment papers; failed to 

file an affidavit of prior civil actions; and failed to file his inmate account statement 
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with his affidavit of indigency. For all the aforementioned reasons, we dismiss the 

petition for habeas corpus. 

{¶11} Costs taxed against Petitioner. Final order. Clerk to serve notice as 

provided by the Civil Rules. 

Waite, J., concurs. 

Vukovich, J., concurs. 

DeGenaro, P.J., concurs.