State ex rel. Neguse v. McIntosh (Slip Opinion) , 2020 Ohio 3533 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Neguse v. McIntosh, Slip Opinion No. 2020-Ohio-3533.]
NOTICE
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2020-OHIO-3533THE STATE EX REL. NEGUSE, APPELLANT, v. MCINTOSH,1 JUDGE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Neguse v. McIntosh, Slip Opinion No.
2020-Ohio-3533.]
Prohibition—Inmate’s affidavit listing prior civil actions failed to comply with R.C.
2969.25(A)—Court of appeals’ dismissal of writ affirmed.
(No. 2019-1772—Submitted April 28, 2020—Decided July 2, 2020.)
APPEAL from the Court of Appeals for Franklin County,
No. 18AP-526, 2019-Ohio-4950.
____________________
Per Curiam.
{¶ 1} Appellant, Mekria Neguse, a prison inmate, seeks a writ of prohibition
to invalidate a 1995 nunc pro tunc order in which then Judge Dale A. Crawford of
the Franklin County Court of Common Pleas denied his petition for postconviction
1. The court of appeals noted that appellee, Judge Stephen L. McIntosh, “as the successor to named
respondent Judge Dale Crawford,” had filed a motion to dismiss. 2019-Ohio-4950, ¶ 2. In
accordance with S.Ct.Prac.R. 4.06(B), we make the substitution.
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relief. On appeal, the Tenth District Court of Appeals dismissed the cause for
failure to state a claim. We affirm the Tenth District’s judgment, although on
different grounds.
FACTS
{¶ 2} Neguse is serving prison sentences for a 1990 murder conviction that
was entered on a jury verdict and 1989 convictions for drug abuse and assault that
were entered on guilty pleas. In October 1993, Neguse filed a petition for
postconviction relief from his 1989 convictions. Judge Crawford held a hearing
and denied the motion in June 1994. In February 1995, Judge Crawford issued a
nunc pro tunc entry restating his denial of postconviction relief. It is not clear why
a nunc pro tunc entry was necessary.
{¶ 3} Since then, Neguse has repeatedly challenged his 1989 convictions,
both by filing new motions in the criminal case and by attempting to reopen
proceedings on his 1993 postconviction petition. Neguse’s ongoing efforts include
a recent attempt to withdraw his 1989 guilty pleas. See State v. Neguse, 10th Dist.
Franklin Nos. 17AP-449 and 17AP-450, 2018-Ohio-1163. And the present case is
at least the third attempt to obtain a writ to reopen the postconviction petition he
filed in 1993. See State ex rel. Neguse v. Crawford, 10th Dist. Franklin No. 06AP-
389, 2007-Ohio-1168 (denial of writ of procedendo sought to require Judge
Crawford to issue findings and conclusions in support of his denial of
postconviction relief in 1994), aff’d sub nom. State ex rel. Neguse v. McIntosh, 115
Ohio St.3d 216, 2007-Ohio-4788, 874 N.E.3d 772; State ex rel. Neguse v. Franklin
Cty. Court of Common Pleas, 10th Dist. Franklin No. 17AP-755, 2019-Ohio-564(dismissing similar mandamus action).
{¶ 4} In June 2018, Neguse filed his current complaint in the Tenth District,
seeking a writ of prohibition to invalidate the 1995 nunc pro tunc order. The
complaint asserts that Judge Crawford never filed an original judgment entry
finalizing the denial of the postconviction petition in 1994 and that the 1995 nunc
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pro tunc order is “contrary to law and prohibited under Civ.R. 58(A), Civ.R. 60(A),
Civ.R. 52, and Local Rule 25.02.”
{¶ 5} The court of appeals referred the case to a magistrate, and appellee,
Judge Stephen L. McIntosh, Judge Crawford’s successor, filed a motion to dismiss.
The motion invoked res judicata and Neguse’s failure to strictly comply with R.C.
2969.25(A), which requires that an inmate suing a government entity or employee
submit a detailed affidavit describing all prior civil actions and appeals filed in the
preceding five years. Neguse filed a response to the motion.
{¶ 6} In January 2019, the magistrate issued a decision recommending
dismissal of the action on res judicata grounds without using that term. After
reciting the history of Neguse’s motions pertaining to his postconviction petition,
the decision states that Neguse “continues to challenge” the trial court’s denial of
his 1994 postconviction petition. 2019-Ohio-4950, ¶ 24. The magistrate found that
“this question has been raised and answered by both the trial court and this court.”
Id.{¶ 7} Neguse filed no objections to the magistrate’s decision. In December
2019, the Tenth District adopted the magistrate’s decision and dismissed the action.
Id. at ¶ 9. Neguse appealed to this court as of right.
ANALYSIS
{¶ 8} “Dismissal of [a] prohibition complaint for failure to state a claim
upon which relief can be granted is appropriate if, after presuming the truth of all
factual allegations of the complaint and making all reasonable inferences in [the
relator’s] favor, it appears beyond doubt that he can prove no set of facts entitling
him to the requested extraordinary writ of prohibition.” State ex rel. Hemsley v.
Unruh, 128 Ohio St.3d 307, 2011-Ohio-226, 943 N.E.2d 1014, ¶ 8.
{¶ 9} Pursuant to Civ.R. 53(D)(3)(b)(iv), Neguse’s failure to object to the
magistrate’s decision bars him from “assign[ing] as error on appeal the court’s
adoption of any factual finding or legal conclusion” of the magistrate. Accordingly,
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we limit our review to plain error. State ex rel. Hunley v. Dept. of Rehab. & Corr.,
156 Ohio St.3d 354, 2019-Ohio-933, 126 N.E.3d 1122, ¶ 5.
{¶ 10} Recently, we stated that the dismissal on grounds of res judicata of
a mandamus action for failure to state a claim is error because res judicata is an
affirmative defense that may not be raised in a motion to dismiss. State ex rel.
Green v. Wetzel, 158 Ohio St.3d 104, 2019-Ohio-4228, 140 N.E.3d 586, ¶ 6, citing
Civ.R. 8(C). However, this court will not reverse a correct judgment merely
because erroneous reasons were given for it. Id. In this case, we affirm the Tenth
District’s judgment but for different reasons. See, e.g., State ex rel. Evans v. Scioto
Cty. Common Pleas Court, 155 Ohio St.3d 41, 2018-Ohio-4696, 118 N.E.3d 249,
¶ 5.
{¶ 11} Neguse’s complaint was correctly dismissed because his affidavit
did not comply with R.C. 2969.25(A). R.C. 2969.25(A) requires an inmate who
commences a civil action or appeal against a government entity or employee to file,
at the time the action or appeal is commenced, “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.” The affidavit must include
all of the following for each prior action or appeal:
(1) A brief description of the nature of the civil action or
appeal;
(2) The case name, case number, and the court in which the
civil action or appeal was brought;
(3) The name of each party to the civil action or appeal; and
(4) The outcome of the civil action or appeal, including
whether the court dismissed the civil action or appeal as frivolous or
malicious under state or federal law or rule of court * * *.
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January Term, 2020
{¶ 12} The affidavit Neguse filed with his prohibition complaint does not
satisfy the statutory requirements. Although it refers to the mandamus action that
the Tenth District dismissed in 2019, see State ex rel. Neguse, 2019-Ohio-564, it
does not include the case number, the nature of the case, the disposition, or the fact
that Neguse pursued an interlocutory appeal to this court that was dismissed for
failure to prosecute, see 153 Ohio St.3d 1444, 2018-Ohio-2897, 102 N.E.3d 501.
Neguse’s failure to file an affidavit that strictly complies with R.C. 2969.25(A) is
a sufficient ground for dismissal. See, e.g., Robinson v. Fender, ___ Ohio St.3d
___, 2020-Ohio-458, ___ N.E.3d ___, ¶ 6 (affidavit reciting that claimant could not
remember the prior civil actions he had filed did not comply with the statute and
was grounds for dismissal); State ex rel. Swanson v. Ohio Dept. of Rehab. & Corr.,
156 Ohio St.3d 408, 2019-Ohio-1271, 128 N.E.3d 193, ¶ 6-7 (omission of one case
from the affidavit’s list of prior civil actions constituted a failure to comply with
the statute, justifying dismissal); State ex rel. Ware v. Ohio Dept. of Rehab. & Corr.,
10th Dist. Franklin No. 19AP-511, 2020-Ohio-594, ¶ 4-6 (cause dismissed even
though the relator had filed an affidavit extensively reciting his prior civil actions,
because the affidavit failed to set forth the nature of each case).
{¶ 13} In any event, Neguse’s complaint fails to state a claim for relief
because he had an adequate remedy at law by appeal from Judge Crawford’s denial
of his petition for postconviction relief.
{¶ 14} To establish entitlement to a writ of prohibition, Neguse had the
burden to plead—and ultimately prove—that (1) Judge Crawford exercised judicial
power in connection with the petition for postconviction relief, (2) the judge’s
exercise of judicial power was unauthorized by law, and (3) denying the writ would
result in injury for which no other adequate remedy exists in the ordinary course of
the law. State ex rel. Greene Cty. Bd. of Commrs. v. O’Diam, 156 Ohio St.3d 458,
2019-Ohio-1676, 129 N.E.3d 393, ¶ 16.
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{¶ 15} Neguse cannot establish the lack of an adequate remedy in the
ordinary course of the law: his remedy for any alleged error on Judge Crawford’s
part was to appeal the judge’s 1994 judgment entry. The gravamen of Neguse’s
complaint lies in his attempt, by invalidating the nunc pro tunc order, to reset the
clock so that he may renew his contentions that he is entitled to postconviction relief
on the merits. His prayer for relief makes this purpose explicit by requesting that
Judge Crawford be ordered to “make findings of fact and conclusions of law,”
which Neguse would then contest. But a direct appeal 26 years ago was the avenue
for advancing that challenge.
{¶ 16} Neguse’s complaint suggests that he had no opportunity to appeal
because Judge Crawford “without reason never filed a judgment entry denying the
petition for post-conviction relief after June 29, 1994.” (Emphasis deleted.) This
contradicts the complaint’s admission that the judge issued the 1995 nunc pro tunc
order, which explicitly denies the postconviction petition. Neguse fails to explain
why, even if no earlier dispositive order had been entered, he could not have
appealed from the nunc pro tunc order itself.
{¶ 17} Moreover, the previous decisions of the Tenth District establish that
there was a June 1994 judgment entry from which Neguse could have appealed. In
denying Neguse’s 2007 request for a writ of prohibition, the Tenth District noted
that “the trial court denied [Neguse’s] petition for postconviction relief in an entry
filed on June 29, 1994.” (Emphasis added.) State ex rel. Neguse, 2007-Ohio-1168,
at ¶ 7. And in affirming the trial court’s rejection of Neguse’s attempt to withdraw
the guilty pleas leading to the 1989 convictions, the Tenth District similarly referred
to the disposition of Neguse’s 1993 postconviction petition and stated that Neguse’s
attempted appeal from Judge Crawford’s 1994 denial of his postconviction petition
was dismissed by the court of appeals in April 1995. See Neguse, 2018-Ohio-1163,
at ¶ 10. Indeed, in his recent mandamus case, Neguse himself acknowledged that
after Judge Crawford “den[ied] [Neguse’s] Post-Conviction Petition in an entry
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January Term, 2020
filed June 29, 1994,” Neguse “filed [a] Notice of appeal July 26, 1994,” which the
court of appeals later dismissed because of Neguse’s “failure * * * to file a brief,”
State ex rel. Neguse, 2019-Ohio-564, at ¶ 15.
{¶ 18} When entertaining a motion to dismiss a writ complaint, a court may
take notice of the docket and record in a closely related case to determine whether
the current complaint states a claim for relief. In State ex rel. Neff v. Corrigan, 75
Ohio St.3d 12, 15-16, 661 N.E.2d 170 (1996), we affirmed the court of appeals’
dismissal of a prohibition complaint and thereby approved of the court of appeals’
taking notice of whether a particular issue had been presented and resolved in
earlier appeals relating to the underlying litigation. And in Klick v. Snavely, 119
Ohio St. 308, 309-310, 164 N.E. 233 (1928), we dismissed a quo warranto petition
by taking notice of the record of a parallel mandamus case involving the same
parties; in doing so, we determined that a central allegation of the quo warranto
petition was not true, and on that basis, we granted the motion to dismiss. Here,
we may take notice that Neguse’s complaint misstates the record of the
postconviction proceedings.
{¶ 19} Accordingly, Neguse possessed an adequate remedy at law by
appeal in 1994 or in 1995 from the judgments denying his petition for
postconviction relief.
CONCLUSION
{¶ 20} For the foregoing reasons, we affirm the judgment of the court of
appeals dismissing Neguse’s prohibition complaint, albeit on different grounds.
Judgment affirmed.
O’CONNOR, C.J., and FRENCH, FISCHER, and STEWART, JJ., concur.
KENNEDY, DEWINE, and DONNELLY, JJ., concur in judgment only.
_________________
Mekria Neguse, pro se.
_________________
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