Opinion
No. 110367
03-26-2021
STATE OF OHIO, Respondent, v. DALE HANCOCK, Petitioner.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, for respondent. Dale Hancock, pro se.
JOURNAL ENTRY AND OPINION JUDGMENT: PETITION DISMISSED Writ of Habeas Corpus
Order No. 545178
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, for respondent. Dale Hancock, pro se. LARRY A. JONES, SR., J.:
{¶ 1} Dale Hancock has filed a "motion for habeas corpus violation of right to go to trial" premised upon the allegation that he has been denied the right to a speedy trial in State v. Hancock, Cuyahoga C.P. No. CR-18-634154-A. Sua sponte, we dismiss Hancock's request for a writ of habeas because of procedural defects and the failure to state a claim upon which relief can be granted.
A. Procedural Defects
1. Proper Caption
{¶ 2} R.C. 2725.04 mandates that an application for a writ of habeas corpus must be brought "by petition, signed and verified by the party for whose relief is intended, or by some person for him" and requires the petition to name the officer or person in whose custody the prisoner is confined or restrained. R.C. 2725.04(B).
{¶ 3} Herein, Hancock asserts by motion, rather than petition, that he is being restrained in the Cuyahoga County Jail. Hancock has not named the Cuyahoga County Sheriff as respondent. Hancock has failed to comply with R.C. 2725.04(B). State ex rel. Sherrills v. State, 91 Ohio St.3d 133, 742 N.E.2d 651 (2001); Whitman v. Shaffer, 8th Dist. Cuyahoga No. 94486, 2010-Ohio-446. 2. Civ.R. 10 — Names and Addresses of All Parties
{¶ 4} Civ.R. 10(A) requires a complaint to include the names and addresses of all parties in the case caption. Civ.R. 10(A) applies to Hancock's "motion for habeas corpus violation of right to go to trial," which this court is treating as a petition. Kneuss v. Sloan, 146 Ohio St.3d 248, 2016-Ohio-3310, 54 N.E.3d 1242. Hancock's failure to comply with Civ.R. 10(A) provides sufficient grounds to dismiss his request for a writ of habeas corpus. Greene v. Turner, 151 Ohio St.3d 513, 2017-Ohio-8305, 90 N.E.3d 901. 3. R.C. 2725.04(D) — Commitment Papers
{¶ 5} Hancock did not attach any document that could be construed as a commitment paper to his request for a writ of habeas corpus. This is a clear violation of R.C. 2725.04(D). The failure to attach a prisoner's commitment papers to his habeas corpus petition is a fatal defect that warrants the dismissal of action. See, e.g., Hawkins v. S. Ohio Corr. Facility, 102 Ohio St.3d 299, 2004-Ohio-2893, 809 N.E.2d 1145. 4. R.C. 2969.25 — Prior Civil Actions and Inmate Account Balance
{¶ 6} An inmate that files an original action in the court of appeals, against a government entity or employee, must comply with R.C. 2969.25(A) and (C). Greene at ¶ 5.
{¶ 7} R.C. 2969.25(A) requires that Hancock attach a notarized affidavit to his petition for a writ of habeas corpus that contains a description of each civil action or appeal of a civil action filed in the previous five years. Hancock has failed to provide the required notarized affidavit as required by R.C. 2969.25(A). 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, 86 N.E.3d 331; State ex rel. McGrath v. McDonnell, 126 Ohio St.3d 511, 2010-Ohio-4726, 935 N.E.2d 830, quoting State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262, 788 N.E.2d 634.
{¶ 8} Hancock has also failed to comply with R.C. 2969.25(C)(1) that requires a statement certified by the institutional cashier setting forth the balance in Hancock's prison account for the previous six months. The failure to comply with R.C. 2969.25(C)(1) warrants dismissal of Hancock's request for a writ of habeas corpus. State ex rel. Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, 844 N.E.2d 842.
B. Civ.R. 12(B)(6) — Failure to State a Claim
{¶ 9} Hancock claims a violation of his right to a speedy trial in State v. Hancock, Cuyahoga C.P. N0. CR-18-634154-A. A violation of the right to a speedy trial is not cognizable in habeas corpus. Clarke v. McFaul, 8th Dist. Cuyahoga No. 89436, 2007-Ohio-1592, citing State ex rel. Brantley v. Ghee, 80 Ohio St.3d 287, 1997-Ohio-116, 685 N.E.2d 1243. See also Washington v. Tyson-Parker, 101 Ohio St.3d 131, 2004-Ohio-298, 802 N.E.2d 655; Prather v. Brigano, 86 Ohio St.3d 609, 1999-Ohio-212, 716 N.E.2d 197; and In re Singer, 45 Ohio St.2d 130, 341 N.E.2d 849 (1976).
{¶ 10} In addition, an appeal provides an adequate remedy at law, precluding habeas relief. Id.; Moore v. Kochevar, 8th Dist. Cuyahoga No. 84588, 2004-Ohio-2687. Hancock has failed to state a claim upon which relief can be granted. Civ.R. 12(B)(6); Keith v. Bobby, 117 Ohio St.3d 470, 2008-Ohio-1443, 884 N.E.2d 1067; and Gordon v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 17AP-792, 2018-Ohio-2272.
C. Conclusion
{¶ 11} Hancock's "motion for habeas corpus violation of right to go to trial" contains numerous procedural defects that require dismissal of his request for a writ of habeas corpus. Further, Hancock has failed to state a claim upon which relief can be granted; the violation of the right to a speedy trial is not cognizable in habeas corpus.
{¶ 12} Accordingly, we sua sponte dismiss Hancock's "motion for habeas corpus violation of right to go to trial." Costs to Hancock. It is further ordered that the clerk of the Eighth District Court of Appeals serve notice of this judgment upon all parties as required by Civ.R. 58(B).
{¶ 13} Petition dismissed. /s/_________
LARRY A. JONES, SR., JUDGE SEAN C. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR