Opinion
112757
06-30-2023
JAYSON MITCHELL, Petitioner, v. OHIO, Respondent.
Jayson Mitchell, pro se. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for respondent
Writ of Habeas Corpus Motion No. 564595 Order No. 564812
JUDGMENT: PETITION DENIED
Jayson Mitchell, pro se.
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for respondent
JOURNAL ENTRY AND OPINION
MICHELLE J. SHEEHAN, J.
{¶ 1} Jayson Mitchell, the petitioner, has filed a document captioned "habeas corpus" that will be treated as a petition for a writ of habeas corpus. Mitchell is currently incarcerated in the Cuyahoga County Jail because of criminal charges pending in State v. Mitchell, Cuyahoga C.P. Nos. CR-22-674402 and CR-22-676740. Mitchell seeks his immediate release from incarceration based upon a lack of procedural bindover and malicious prosecution. The state of Ohio has filed a motion for summary judgment that is granted for the following reasons.
I. Proper Party
{¶ 2} R.C. 2725.04 provides that an application for a writ of habeas corpus must be brought by petition, signed, and verified by the party that seeks relief, or by some person for him and requires the petition to specifically name the officer or person in whose custody the prisoner is confined or restrained. R.C. 2725.04(B). Mitchell has failed to name any law enforcement officer or penal institution as respondent and thus has failed to comply with RC. 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.
II. Civ.R. 10 Caption
{¶ 3} Civ.R. 10(A) requires a complaint to include the names and addresses of all parties in the caption. Civ.R. 10(A) applies to Mitchell's petition for habeas corpus. Kneuss v. Sloan, 146 Ohio St.3d 248, 54 N.E.3d 1242 (2001). The failure of Mitchell to comply with Civ.R. 10(A) provides sufficient grounds to deny the request for a writ of habeas corpus. Greene v. Turner, 151 Ohio St.3d 513, 2017-Ohio-8305, 90 N.E.3d 901.
III. Verified Petition
{¶ 4} R.C. 2725.04(D) requires that a petition for a writ of habeas corpus must be verified. Herein, Mitchell has failed to verify his petition for habeas corpus, which requires denial. Chari v. Vore, 91 Ohio St.3d 323, 744 N.E.2d 763 (2001); State ex rel. Crigger v. Ohio Adult Parole Auth., 82 Ohio St.3d 270, 695 N.E.2d 254 (1998). In Chari, the Ohio Supreme Court firmly established that an unverified petition for habeas corpus must be denied.
IV. Compliance with R.C. 2969.25
{¶ 5} In addition, Mitchell has failed to comply with R.C. 2969.25(C) which mandates that the petition contain a statement certified by the institutional cashier setting forth the balance in the inmate's account for the preceding six months. State ex rel. Neil v. French, 153 Ohio St.3d 271, 2018-Ohio-2692, 104 N.E.3d 764. The failure to comply with R.C. 2969.25(C) cannot be cured by an amended complaint. State ex rel. Hall v. Mohr, 140 Ohio St.3d 297, 2014-Ohio-3735, 17 N.E.3d 581.
V. Substantive Analysis of Petition for Habeas Corpus
{¶ 6} Mitchell's claims of lack of a bindover and prosecutorial misconduct do not support the petition for a writ of habeas corpus. A preliminary hearing, which includes a bindover if required, is rendered unnecessary and not mandated if the defendant is indicted by a grand jury. Mitchell was indicted by the Cuyahoga County Grand Jury in Cuyahoga C.P. No. CR-22-674402 on September 20, 2022, and in Cuyahoga C.P. No. CR-22-676740 on December 16, 2022. See Crim.R. 5(B)(1); State v. Wigglesworth, 18 Ohio St.2d 171, 248 N.E.2d 607 (1969); White v. Maxwell, 174 Ohio St. 186, 187 N.E.2d 878 (1963); State v. Bear, 4th Dist. Gallia No. 20CA9, 2021-Ohio 1539; Clarke v. McFaul, 8th Dist. Cuyahoga No. 89436, 2007-Ohio-1592; Nash v. McFaul, 8th Dist. Cuyahoga No. 81439, 2002-Ohio-3647.
{¶ 7} Finally, prosecutorial misconduct does not constitute a basis to grant habeas corpus. Keith v. Bobby, 117 Ohio St.3d 470, 2008-Ohio-1443, 884 N.E.2d 1067; Williamson Williams, 103 Ohio St.3d 25, 2004-Ohio-4111, 812 N.E.2d 1283.
{¶ 8} Accordingly, we grant the state of Ohio's motion for summary judgment. Costs to Mitchell. The court directs the clerk of courts to serve all parties with notice of this judgment and the date of entry upon the journal as required by Civ.R. 58(B).
{¶ 9} Petition denied.
ANITA LASTER MAYS, A.J., and MARY J. BOYLE, J., CONCUR