State ex Rel. Nicholson v. Russo

Full title: Thomas Nicholson, State of Ohio, ex rel., Relator, v. Judge John Russo…

Court: Court of Appeals of Ohio, Eighth District, Cuyahoga County

Date published: Jun 14, 2006

2006 Ohio 3002 (Ohio Ct. App. 2006)

Opinion

No. 87980.

DATE OF JOURNALIZATION: June 14, 2006.

Writ of Mandamus.

Writ Denied. Motion No. 383332, Order No. 384955.

Thomas Nicholson, pro se, Inmate No. 440-566, Mansfield Correctional Inst., P.O. Box 788, Mansfield, Ohio 44901, for Relator.

William D. Mason, Cuyahoga County Prosecutor, By: Mary McGrath, Assistant County Prosecutor, Justice Center — 9^th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, for Respondent.

ORIGINAL ACTION JOURNAL ENTRY and OPINION

JUDGE DIANE KARPINSKI.

{¶ 1} Thomas Nicholson has filed a complaint for a writ of mandamus. On February 13, 2004, Nicholson filed an "amended petition for post-conviction relief and motion for evidentiary hearing" in State v. Nicholson, Cuyahoga County Court of Common Pleas Case No. CR-422675. From this court, Nicholson seeks an order requiring Judge John Russo to issue findings of fact and conclusions of law with regard to the amended petition for post-conviction relief. Judge Russo has filed a motion for summary judgment, which we grant for the following reasons.

{¶ 2} Initially, we find that Nicholson has failed to comply with R.C. 2969.25, which requires that an affidavit be attached to the complaint for a writ of mandamus and that the affidavit describe each civil action or appeal filed within the previous five years in any state or federal court. Nicholson's failure to comply with the requirements of R.C. 2969.25 warrants the dismissal of the complaint for a writ of mandamus. State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 1998-Ohio-218, 696 N.E.2d 594; Alford v. Winters, 80 Ohio St.3d 285, 1997-Ohio-117, 68 N.E.2d 1242.

{¶ 3} In addition, Nicholson's complaint for a writ of mandamus is moot. Attached to Judge Russo's motion for summary judgment is a copy of Judge Russo's findings of fact and conclusions of law, as issued with regard to the "amended petition for post-conviction relief and motion for evidentiary hearing." Judge Russo has discharged his duty, with regard to the need for findings of fact and conclusions of law. State ex rel. Jerninghan v. Cuyahoga Cty. Court of Common Pleas (1996), 74 Ohio St.3d 278, 658 N.E.2d 723; State ex rel. Gantt v. Coleman (1983), 6 Ohio St.3d 5, 450 N.E.2d 1163.

{¶ 4} Accordingly, we grant Judge Russo's motion for summary judgment. Costs to Judge Russo. It is further ordered that the Clerk of the Eighth District Court of Appeals serve upon all parties notice of this judgment as required by Civ.R. 58(B).

Writ denied.

Gallagher, J., Concurs. Rocco, J., concurs.