Opinion
No. 103076
09-11-2015
STATE OF OHIO, EX REL. WILEY DAVIS RELATOR v. JUDGE DEENA R. CALABRESE RESPONDENT
FOR RELATOR Wiley Davis, pro se Grafton Correctional Institution 2500 S. Avon Belden Road Grafton, Ohio 44044 ATTORNEYS FOR RESPONDENT Timothy J. McGinty Cuyahoga County Prosecutor By: James E. Moss Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: WRIT DENIED Writ of Procedendo
Motion No. 486428
Order No. 488514
FOR RELATOR
Wiley Davis, pro se
Grafton Correctional Institution
2500 S. Avon Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR RESPONDENT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: James E. Moss
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., A.J.:
{¶1} On May 28, 2015, the relator, Wiley Davis, commenced this mandamus or procedendo action against Judge Donald Nugent to compel the judge to rule on his motion for resentencing, which he filed in the underlying case, State v. Davis, Cuyahoga C.P. No. CR-91-275129, on March 10, 2014. On June 10, 2015, the respondent moved for summary judgment, inter alia, on the grounds of mootness. Attached to the summary judgment motion is a certified copy of a June 3, 2015 journal entry in which Judge Calabrese denied Davis's March 10, 2014 motion for resentencing. Davis never filed a response. The June 3, 2015 entry establishes that the respondent judge has fulfilled her duty to proceed to judgment on the subject motion and that this writ action is moot.
Davis named Judge Nugent as the respondent. However, he is no longer a Cuyahoga County Common Pleas Court judge. Deena Calabrese is the successor judge, and this court substitutes her as the respondent pursuant to Civ.R. 21. --------
{¶2} The relator has also failed to comply with R.C. 2969.25, which requires an affidavit that describes each civil action or appeal filed by the relator within the previous five years in any state or federal court. The relator's failure to comply with R.C. 2969.25 warrants dismissal of the complaint for an extraordinary writ. State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 1998-Ohio-218, 696 N.E.2d 594 and State ex rel. Alford v. Winters, 80 Ohio St.3d 285, 1997-Ohio-117, 685 N.E.2d 1242.
{¶3} Accordingly, this court grants the respondent judge's summary judgment motion and denies the application for a writ of mandamus or procedendo. Relator to pay costs. This court directs the clerk of courts to serve all parties notice of this judgment and its date of entry upon the journal as required by Civ.R. 58(B).
{¶4} Writ denied. /s/_________
FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE
KATHLEEN ANN KEOUGH, J., and
PATRICIA A. BLACKMON, J., CONCUR