[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



                                             5
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.




                                            6
      {¶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




                                            7
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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