[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Simpson v. Cooper, Slip Opinion No. 2018-Ohio-4068.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are 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. 2018-OHIO-4068
                  THE STATE EX REL. SIMPSON v. COOPER, JUDGE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as State ex rel. Simpson v. Cooper, Slip Opinion No.
                                     2018-Ohio-4068.]
Mandamus—Challenge to credibility of the evidence—Res judicata—Court of
        appeals’ dismissal of petition affirmed.
     (No. 2018-0215—Submitted May 8, 2018—Decided October 10, 2018.)
              APPEAL from the Court of Appeals for Hamilton County,
                                      No. C-1700606.
                                     _______________
        Per Curiam.
        {¶ 1} Appellant, Marcus Simpson, appeals the judgment of the First District
Court of Appeals dismissing his petition for a writ of mandamus against appellee,
Hamilton County Common Pleas Court Judge Ethna Cooper. We affirm the
judgment of the court of appeals.
                             SUPREME COURT OF OHIO




                                    Background
       {¶ 2} In 1984, Simpson was convicted in Hamilton County of one count of
aggravated robbery and sentenced to five to 25 years in prison. The court of appeals
affirmed. State v. Simpson, 1st Dist. Hamilton No. C-840420, 1985 WL 6728 (Apr.
3, 1985). We declined to accept Simpson’s discretionary appeal.
       {¶ 3} In November 2017, Simpson filed a petition for a writ of mandamus
asking the First District Court of Appeals to compel Judge Cooper to vacate
Simpson’s aggravated-robbery conviction. Judge Cooper filed a motion to dismiss.
In December 2017, the court of appeals granted the motion to dismiss on res
judicata grounds.
                                   Legal Analysis
       {¶ 4} To be entitled to a writ of mandamus, Simpson must establish by clear
and convincing evidence that (1) he has a clear legal right to the requested relief,
(2) Judge Cooper has a clear legal duty to provide it, and (3) Simpson lacks an
adequate remedy in the ordinary course of the law. State ex rel. Love v. O’Donnell,
150 Ohio St.3d 378, 2017-Ohio-5659, 81 N.E.3d 1250, ¶ 3.
       {¶ 5} Simpson’s mandamus claim challenges the credibility of the evidence
on which his aggravated-robbery conviction is based. However, on direct appeal,
Simpson challenged his conviction on insufficient-evidence and manifest-weight
grounds. Simpson, 1985 WL 6728 at *1. Therefore, Simpson had—and has used—
an adequate remedy in the ordinary course of the law and is not entitled to a writ of
mandamus. Shoop v. State, 144 Ohio St.3d 374, 2015-Ohio-2068, 43 N.E.3d 432,
¶ 8 (“An appeal is generally considered an adequate remedy in the ordinary course
of law sufficient to preclude a writ”).
       {¶ 6} Moreover, in a previous appeal challenging the dismissal of a prior
mandamus action, we held that “res judicata bars Simpson’s claims concerning
insufficiency of the evidence supporting his conviction.” State ex rel. Simpson v.
Cooper, 120 Ohio St.3d 297, 2008-Ohio-6110, 898 N.E.2d 936, ¶ 7. And in




                                          2
                                January Term, 2018




Supreme Court case No. 2012-0501, Simpson filed an original action in mandamus
in this court asserting similar claims. State ex rel. Simpson v. Cooper, 131 Ohio
St.3d 1550, 2012-Ohio-2263, 967 N.E.2d 762 (granting Judge Cooper’s motion to
dismiss).
                                      Motions
       {¶ 7} Simpson has also filed a motion asking this court to declare Judge
Cooper a frivolous and vexatious litigator, as well as a motion to appoint the Office
of the Ohio Public Defender to represent him for purposes of this appeal.
       {¶ 8} S.Ct.Prac.R. 4.03(B) states that “[i]f a party habitually, persistently,
and without reasonable cause engages in frivolous conduct under division (A) of
this rule, the Supreme Court may, sua sponte or on motion by a party, find the party
to be a vexatious litigator.” S.Ct.Prac.R. 4.03(A) defines an action as frivolous “if
it is not reasonably well-grounded in fact or warranted by existing law or a good-
faith argument for the extension, modification, or reversal of existing law.”
       {¶ 9} Simpson argues that we should declare Judge Cooper to be a
vexatious litigator because she has not vacated his conviction on the grounds that
“the alleged victim Mr. Brunkel did committed [sic] the crime of perjury initiating
the felony offense which [Simpson] illegally and unlawfully stands convicted of.”
(Emphasis deleted.) Simpson’s legal history demonstrates that he has instituted
numerous civil actions collaterally challenging his conviction on these grounds.
And Judge Cooper’s role in these civil actions has been limited to either ruling on
his various trial-court motions or defending herself when named as a party.
Accordingly, we deny Simpson’s motion.
       {¶ 10} We deny Simpson’s motion to appoint counsel as moot.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, DEWINE, and
DEGENARO, JJ., concur.
       FISCHER, J., not participating.




                                         3
                           SUPREME COURT OF OHIO




                              _________________
       Marcus Simpson, pro se.
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for appellee.
                              _________________




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