State ex rel. Allah-U-Akbar v. Ashtabula Cty. Court of Common Pleas

[Cite as State ex rel. Allah-U-Akbar v. Ashtabula Cty. Court of Common Pleas, 2017-Ohio-8625.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, ex rel. : PER CURIAM OPINION
MALIK ALLAH-U-AKBAR,
:
Relator, CASE NO. 2017-A-0035
:
- vs -
:
ASHTABULA COUNTY COURT OF
COMMON PLEAS, :
Respondent. :
Original Action for Writ of Mandamus and/or Prohibition.
Judgment: Petition dismissed
Malik Allah-U-Akbar, pro se, PID: A358-112, Chillicothe Correctional Institution, 15802
State Route 104, North Chillicothe, OH 45601 (Relator).
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Rebecca Divoky, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Respondent).
PER CURIAM.
{¶1} This matter is before the court on a “Writ of Mandamus and/or Prohibition”
filed by relator, Malik Allah-U-Akbar, aka Odraye G. Jones, against respondent,
Ashtabula County Court of Common Pleas, and respondent’s Civ.R. 12(B)(6) motion to
dismiss for failure to state a claim. For the reasons that follow, the writ, which we
construe as a petition for a writ of mandamus and/or prohibition, is dismissed.
{¶2} On November 17, 1997, while Ashtabula Police Officer William D. Glover,
Jr., was executing an arrest warrant for aggravated robbery against relator and pursuing
him on foot, relator turned around, pulled out a revolver, and began shooting at him.
{¶3} Officer Glover fell to the ground after the first shots, at which time relator
walked back to the officer, and, from a distance of two to twelve inches, fired two more
shots, one striking the officer below his right eye and the second striking him in the top
of the head. Relator then fled the scene.
{¶4} Ashtabula Police Officer Robert Stell located relator several blocks away
from the scene of the shooting, still running. Officer Stell ordered him to stop. Relator
ignored the command and continued running. Officer Stell pursued him on foot. Relator
led Officer Stell to a nearby apartment. Relator tried to force his way in, but a tenant
prevented him from entering. As relator was struggling to enter the apartment, Officer
Stell approached him, drew his weapon, and ordered him to the ground. Relator threw
his revolver in nearby shrubbery. Officer Stell again ordered him to the ground and, this
time, he complied. Officer Stell held him at gunpoint until assistance arrived. Officers
recovered the weapon and relator was arrested. The gun was later matched to fired
cartridge casings recovered at the scene of the shooting, to live cartridges found on
relator at the time of his arrest, and to bullets taken from Officer Glover’s body.
{¶5} Officer Glover was life-flighted to Cleveland's Metro Hospital, where it was
found he sustained substantial brain damage. He died from his gunshot wounds the
following morning.
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{¶6} The state charged relator with aggravated murder with prior calculation
and design with a specification that relator killed the officer for the purpose of escaping
apprehension for an earlier aggravated robbery offense.
{¶7} On May 26, 1998, the jury found relator guilty as charged, and the case
proceeded to the penalty phase. The jury recommended that he be sentenced to death.
The trial court concurred. On June 8, 1998, the trial court sentenced him to death.
{¶8} While relator’s murder case was being tried, another indictment charging
him with two counts of aggravated robbery was pending. After relator was sentenced to
death, on June 9, 1998, the state nolled the aggravated robbery case and the court
dismissed it without prejudice.
{¶9} Relator appealed to the Supreme Court of Ohio, and, in State v. Jones, 91
Ohio St.3d 335 (2001), the Court affirmed his conviction. The Ohio Supreme Court, in
State v. Jones, 92 Ohio St.3d 1421 (2001), granted relator’s motion to stay execution
pending exhaustion of his state post-conviction remedies.
{¶10} Subsequently, relator sought post-conviction relief, which the trial court
denied. This court, in State v. Jones, 11th Dist. Ashtabula No. 2000-A-0083, 2002-
Ohio-2074, affirmed the trial court’s judgment. Relator also filed a motion for relief from
judgment. The trial court denied that motion and, in State v. Jones, 11th Dist. Ashtabula
No. 2001-A-0072, 2002-Ohio-6914, this court affirmed the trial court’s judgment.
{¶11} After relator was unsuccessful in his state direct and post-conviction
appeals, in 2003, he filed a petition for a writ of habeas corpus in the United States
District Court for the Northern District of Ohio, raising 34 claims. In Jones v. Bradshaw,
Warden, 489 F.Supp.2d 786 (N.D.Ohio 2007), the court denied relator’s petition,
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certifying several issues for appeal to the Sixth Circuit. In 2009, the Sixth Circuit
remanded the case to the District Court for discovery. The parties completed that
discovery and the District Court transferred the case back to the Sixth Circuit in 2015.
Most recently, in July 2017, the District Court granted relator’s application for a
certificate of appealability regarding some eight issues addressed in the District Court’s
prior opinions.
{¶12} Before addressing relator’s current filing, we note that it is procedurally
and substantively defective. First, relator does not refer to his filing as a “petition,” but,
rather, simply as a “Writ of Mandamus and/or Prohibition,” in violation of R.C. 2731.04.
However, in the interest of justice, we construe it as a petition for a writ of mandamus
and/or prohibition.
{¶13} Further, R.C. 2969.25(A) provides that when an inmate files any civil
action or appeal of a civil action against a government entity, such as respondent, the
inmate must file at the same time 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 requirements of R.C. 2969.25 are mandatory. State ex
rel. Walker v. Sloan, 147 Ohio St.3d 353, 2016-Ohio-7451, ¶8. A petitioner’s “belated
attempt to file the required affidavit does not excuse his noncompliance.” Fuqua v.
Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, ¶9, citing R.C. 2969.25(A). Failure to
timely file the required affidavit of prior civil actions mandates dismissal of the petition.
Walker, supra. Thus, relator’s belated affidavit regarding prior civil actions, filed six
weeks after he filed his petition, cannot save it from dismissal.
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{¶14} Moreover, relator’s petition fails on the merits. When presented with a
Civ.R. 12(B)(6) motion to dismiss, the factual allegations of the complaint are accepted
as true, and it must appear beyond doubt that the plaintiff can prove no set of facts
entitling him to relief. O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d
242 (1975), syllabus.
{¶15} “For a writ of mandamus to issue, the relator must establish a clear legal
right to the relief prayed for; the respondent must have a clear legal duty to perform the
act; and the relator must have no plain and adequate remedy in the ordinary course of
the law.” State ex rel. Widmer v. Mohney, 11th Dist. Geauga No. 2007-G-2776, 2008-
Ohio-1028, ¶31.
{¶16} With respect to relator’s request for a writ of prohibition, this court stated in
State ex rel. Caszatt v. Gibson, 11th Dist. Lake No. 2012-L-107, 2013-Ohio-213, ¶15:
{¶17} A writ of prohibition can only be issued where the relator
establishes that: (1) a judicial officer or court intends to exercise
judicial power over a pending matter; (2) the proposed use of that
power is unauthorized under the law; and (3) the denial of the writ
will result in harm for which there is no other adequate remedy in
the ordinary course of the law. * * * A writ of prohibition is a legal
order under which a court of superior jurisdiction enjoins a court of
inferior jurisdiction from exceeding the general scope of its inherent
authority. * * * The writ is an extraordinary remedy which should not
be issued in a routine manner. State ex rel. The Leatherworks
Partnership v. Stuard, 11th Dist. [Trumbull] No. 2002-T-0017, 2002-
Ohio-6477, ¶15. (Internal citations omitted.)
{¶18} Prohibition will lie to prevent the future unauthorized exercise of
jurisdiction or to correct the results of previous jurisdictionally-unauthorized actions.
State ex rel. Brady v. Pianka, 106 Ohio St.3d 147, 2005-Ohio-4105, ¶8.
{¶19} In support of his request for a writ of prohibition, relator argues the state’s
nolle of the aggravated robbery case divested respondent of jurisdiction to enter a final
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judgment in the murder case, resulting in a void judgment. This is because, in his view,
the nolle of the robbery case equated to an acquittal of that case and also to an
acquittal of murder. As for his request for a writ of mandamus, relator argues that he
was entitled to a final judgment in the murder case reflecting the dismissal of the
robbery case. The fundamental flaw in relator’s arguments is that the robbery case and
the murder case are separate cases, which did not arise from the same facts. The
robbery case alleged two counts of aggravated robbery, one committed on October 18,
1997, and the other, on November 8, 1997, while the aggravated murder was
committed on November 17, 1997.
{¶20} Relator made virtually the same arguments in support of a “motion for final
judgment,” which he filed in the trial court on April 19, 2016. In denying that motion, the
trial court adroitly stated:
{¶21} The Court has found no Ohio statute or rule which contemplates a
Motion for Final Judgment in a criminal case. It is well-settled that
“[f]inal judgment in a criminal case means sentence. The sentence
is the judgment.” * * * State v. Chamberlain, 177 Ohio St. 104, 106
(1964).
{¶22} When Defendant was convicted and sentenced to death in June of
1998, he also stood charged with Aggravated Robbery * * *. The
indictment in the Aggravated Robbery case was filed November 26,
1997. In fact, the police officer Defendant murdered in the line of
duty on November 17, 1997 was attempting to arrest Defendant on
a warrant for the Aggravated Robbery. * * * The Aggravated
Robbery charge * * * was dismissed on the State’s motion, nolle
prosequi, after Defendant was convicted of Aggravated Murder and
sentenced to death * * *
.
{¶23} Defendant appears to be arguing for a final judgment of acquittal in
the Aggravated Robbery case. He then appears to argue that his
sentence for Aggravated Murder is void because he was not also
found guilty of Aggravated Robbery. These arguments are
meritless.
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{¶24} Nolle prosequi, “if entered before jeopardy attaches, neither
operates as an acquittal nor prevents further prosecution of the
offense.” C.K. v. State, 2015-Ohio-3421, ¶15 * * *. Jeopardy never
attached in Defendant’s Aggravated Robbery case, as no jury was
ever empaneled in that case. * * * Thus, the nolle prosequi
dismissal did not operate as an acquittal.
{¶25} Moreover, Defendant’s conviction and sentence for Aggravated
Murder would stand, irrespective of whether he was convicted or
acquitted of the Aggravated Robbery charge.
{¶26} The State was not required to prove that Defendant was convicted
of Aggravated Robbery in order to convict him of Aggravated
Murder. The State was merely required to prove that Defendant
purposely, and with prior calculation and design, caused the death
of another.
{¶27} With regard to the death penalty specification * * *, the State was
required to prove that Defendant committed Aggravated Murder “for
the purpose of escaping detection, apprehension, trial, or
punishment for another offense committed by the offender.” In this
case, the offense from which Defendant was attempting to escape
detection, apprehension, trial, or punishment was Aggravated
Robbery.
{¶28} The Supreme Court of Ohio[, in State v. Jones, 91 Ohio St.3d 335(2001),] found that “defendant’s commission of the prior offense
constitutes an essential element of the R.C. 2929.04(A)(3)
specification.” (Emphasis added.) Jones, supra, at 347. However,
there is no requirement under the statute, or any precedent found
by this Court, whereby the offender must actually be convicted of
the prior offense. (Emphasis sic.) Moreover, Defendant’s
argument clearly could have been raised on direct appeal, and is
barred from consideration by this Court under the doctrine of res
judicata.
{¶29} In view of the foregoing, relator is not entitled to a writ of mandamus
because he failed to establish that he had a clear legal right to a final judgment of
acquittal in the robbery case; that respondent had a clear legal duty to issue such entry;
or that he had no plain and adequate remedy in the ordinary course of the law. Further,
relator failed to establish he was entitled to a writ of prohibition because he failed to
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establish that: (1) respondent previously exercised judicial power; (2) that the use of
that power was jurisdictionally unauthorized; or (3) that the denial of the writ would
result in harm for which there is no plain and adequate remedy in the ordinary course of
the law.
{¶30} Since respondent generally had jurisdiction over the murder case, the
court had the basic authority to decide whether the nolle of the robbery case divested
the court of jurisdiction to enter the judgment of conviction in the murder case. Further,
even if the court erred in entering the conviction, relator had an adequate remedy at law
because he could have raised this issue on direct appeal. Leatherworks, supra, at ¶14.
{¶31} Accordingly, it is the order of this court that respondent’s motion to dismiss
is granted and relator’s petition for writ of mandamus and/or prohibition is dismissed.
CYNTHIA WESTCOTT RICE, P.J., DIANE V. GRENDELL, J., TIMOTHY P. CANNON,
J., concur.
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