THE STATE EX REL. FOSTER, APPELLANT, v. FOLEY, WARDEN, APPELLEE.
No. 2022-0186
Supreme Court of Ohio
September 13, 2022
2022-Ohio-3168
Submitted July 12, 2022. APPEAL from the Court of Appeals for Lorain County, No. 21-CA-011812, 2022-Ohio-35.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Foster v. Foley, Slip Opinion No. 2022-Ohio-3168.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers arе requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2022-OHIO-3168
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Foster v. Foley, Slip Opinion No. 2022-Ohio-3168.]
Habeas corpus—Inmate account statement submitted with petitiоn does not comply with
{¶ 1} Appellant, Ezra C. Foster, appeals the Ninth District Court of Appeals’ dismissal of his petition for a writ of habeas corpus. Foster has also filed a “motion seeking consequences” for appellee Keith Foley‘s failure to file a brief in this appeal. We affirm the court of appeals’ judgment and deny Foster‘s motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} Foster is currently incarcerated at the Grafton Correctional Institution, where Foley is the warden. Fоster was convicted in 1989 of five counts of aggravated rape and sentenced to an aggregate prison term of 20 years to life. He was released on parole in May 2016 after serving 27 years. One of the conditions of Foster‘s parole was that he have “no unsupervised contact with minors [and] supervising adults [had to] be approved” by the Ohio Adult Parole Authority (“APA“).
{¶ 3} On February 1, 2021, Foster was arrested by his APA supervising officer for having unsupervised contact with a minor on two occasions in January 2021. A parole-revocation hearing was held on March 24, 2021. Foster was fоund guilty of the charged violations and ordered to serve 36 months in prison before again becoming eligible for parole.
{¶ 4} On November 9, 2021, Fostеr filed a petition for a writ of habeas corpus in the court of appeals. Foster sought immediate release from prison, allеging that his parole-revocation hearing had not been held within the time prescribed by an Ohio Department of Rehabilitation and Correсtion policy. Foster attached a signed verification to his petition, but his signature was not notarized. Foster also attached to his petition an affidavit of indigency and an inmate account statement, as required by
{¶ 5} The court of appeals sua sponte dismissed Foster‘s petition, finding that it failed to comply with the requirements of
{¶ 6} Foster appealed to this court as of right.
II. ANALYSIS
A. Foster‘s Motion
{¶ 7} Because Folеy did not file a merit brief in this appeal, Foster has filed a “motion seeking consequences of not filing a brief.” Foster asks that this court accept his statement of facts and issues as correct and reverse the court of appeals’ judgment.
{¶ 8} Under S.Ct.Prac.R. 16.07(B), we may accept an appellant‘s statement of facts and issues as correct and reverse the judgment below if the appellant‘s merit brief reasonably appears to sustain reversal. State ex rel. Davidson v. Beathard, 165 Ohio St.3d 558, 2021-Ohio-3125, 180 N.E.3d 1105, ¶ 10. But even if we were to accept Foster‘s statement of facts and issues as correct, his brief does not provide a basis for reversal of the court of appeals’ judgment. We therefore deny the motion.
B. Dismissal of Foster‘s Petition
{¶ 9} This court reviews de novo a court of appeals’ dismissal of a habeas corpus petition. State ex rel. Steele v. Foley, 164 Ohio St.3d 540, 2021-Ohio-2073, 173 N.E.3d 1209, ¶ 6.
{¶ 10} An inmate seeking a waiver of the court‘s filing fees when commencing a civil action against a governmental entity or employee in a court of common pleas, court of apрeals, county court, or municipal court must file with his complaint an affidavit stating that he is seeking a waiver of the prepayment of the сourt‘s full filing fees and an affidavit of indigency.
{¶ 11} Foster‘s inmate account statement does not comply with the statute, because it does not cover the six months preceding the filing of his petition; the statement omits the two months immediately preceding the filing of the petition. This defect was a proper basis for dismissal. See Russell v. Duffey, 142 Ohio St.3d 320, 2015-Ohio-1358, 29 N.E.3d 978, ¶ 12.
{¶ 12} Likewise proper was dismissal of Foster‘s petition for failing to cоmply with
{¶ 13} Foster challenges the verification requirement, arguing that it conflicts with
{¶ 14} Foster also relies on Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78, in which we chose not to dismiss a habeas petition despite the petition‘s failure to comply with the verification requirement. See id. at ¶ 37-38. Because the petition in that case included “a stipulation of the parties agreeing to all the pertinent facts,” we refrained from invoking the general rule requiring dismissal and reached the merits of the petition. Id. at ¶ 38. Foster says that a similar result is appropriate here because Foley failed to filе an answer or otherwise appear and thereby admitted the facts alleged in the habeas petition.
{¶ 15} Foster‘s analogy to Watkins is without merit. In Watkins, we refrained from dismissing the petition because stipulated facts accompanied the petition filed in that case. Id. at ¶ 27, 38. In contrast, Foster did not attach to his petition any
{¶ 16} For the foregoing reasons, the court of appeals correctly found Foster‘s petition to be procedurally defective under
Judgment affirmed.
O‘CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART, and BRUNNER, JJ., concur.
Ezra C. Foster, pro se.