IN THE SUPREME COURT OF OHIO 2013 RESPONDENT'S MOTION TO DISMISS RELATOR'S ACTION IN MANDAMUS

Transcription

1 4 I ^^. IN THE SUPREME COURT OF OHIO 2013 Edward Jackson, Case No vs- Relator, ORIGINAL ACTION Ronald J. Obrien and Judge David Cain et. al., Respondents.. Court of Appeals Case No. 89AP-1015 RESPONDENT'S MOTION TO DISMISS RELATOR'S ACTION IN MANDAMUS RON O'BRIEN Franklin County Prosecuting Attorney 373 South High Street-13th Fl. Columbus, Ohio / And JEFFREY C. ROGERS (Counsel of Record) Assistant Prosecuting Attorney i i o. gov COUNSEL FOR RESPONDENTS EDWARD JACKSON #A B2-W63 Pickaway Correctional P.O. Box 209 Orient, Ohio PRO SE REALATOR eeb h 4:, :^^^ ^ ^ rr-u CLEKK OF COURT SUPREME COURT OF OHIO Respondents, Franklin County Prosecutor Ronald J. O'Brien and Franklin County Court of Common Pleas Judge Davin Cain, moves this Court to dismiss this action pursuant to Civ. R.

2 2" 1-1i 12(B)(6) on grounds that Relator has failed to state a claim on which relief can be granted, or in the alternative a motion for summary judgment pursuant to Civ. R. 56(C) as there exist no genuine issues of material fact and Respondent is entitled to judgment as a matter of law. In addition res judicata bars further review of this matter and finally has not complied with the statutory requirements of R.C Support for this motion is set forth in the accompanying Memorandum In Support, which is incorporated herein by reference. Respectfully submitted, RON O'BRIEN PROSECUTING ATTORNEY FRANKLIN COUNTY, OHIO 2 ^^S Jeffrey C. Rogers Assistant Prosecuting Attorney 373 South High Street, 13th Floor Columbus, Ohio (Phone); (Fax) icro gers n,franklincountyohio. gov Counsel for Respondent MEMORANDUM IN SUPPORT STATEMENT OF THE CASE On September 28, 1988, defendant Edward Jackson was indicted on ten counts. All of the crimes arose out of incidents on September 15, Counts One, Two, and Nine charged defendant with the kidnapping, rape, and gross sexual imposition of Shawn Kimbrough. Counts Three, Four, and Eight charged defendant with the kidnapping, rape, and gross sexual imposition of

3 j Shawn Richardson. Counts Five and Six charged defendant with the kidnapping and attempted rape of Alicia Bohanon. Count Seven charged defendant with felonious assault on Steven Johnson. Count Ten charged defendant with having a weapon while under disability. Each count in the indictment charged defendant with firearm and prior-offense-of-violence specifications, the latter specification arising out of defendant's 1981 aggravated robbery conviction. In ajury trial, defendant was found guilty on all counts except Counts Seven and Eight. The court had dismissed Count Eight, and the jury found defendant not guilty on Count Seven. Defendant was also found guilty by the jury on the firearm and prior-offense-of-violence specifications. The court imposed prison terms on all offenses (some concurrent and most consecutive), with those terms adding up to an indefinite prison term of 51 to 105 years, plus 15 years actual incarceration on the firearm specifications. The court filed its judgment of conviction on August 2, On August 23, 1990, the 10 th District Court of Appeals affirmed defendant's convictions in substantial part. State v. Jackson (Aug. 23, 1990), Franklin App. No. 89AP-1015, unreported. The 10t' District Court of Appeals reversed only because of sentencing errors affecting Count Six and regarding the need to merge some of the firearm specifications. This Court declined jurisdiction over the case. State v. Jackson (1991), 57 Ohio St.3d 709. In an amended entry filed on October 9, 1990, the trial court resentenced defendant in accordance wtth this C_,'oL,-rt's rjpinion The nnly effe^rt ^f tl:e re3entenc^ng gjas that defi,ndaiit was given three three-year terms of actual incarceration for the firearm specifications (rather than five three-year terms as before). Otherwise, the trial court re-imposed sentences adding up to an aggregate indefinite prison term of 51 to 105 years.

4 On June 17, 1992, defendant filed an application for delayed reconsideration in his appeal. He claimed his appellate counsel had been ineffective in failing to raise a claim of ineffective assistance of trial counsel. Defendant asserted that his trial counsel failed to call certain witnesses, including a psychiatric expert. On November 17, 1992, the 10t' District Court of Appeals denied the motion for delayed reconsideration. State v. Jackson (Nov. 17, 1992), Franklin App. No. 89AP-1015, unreported. This Court again declined jurisdiction over the case. State v. Jackson (1993), 66 Ohio St.3d On August 29, 1995, defendant filed a "nunc pro tunc motion for sentence modification." In this motion, defendant claimed that the firearm specifications were part of the "same transaction" so that only a single three-year prison term should have been imposed. On September 23, 1996, defendant filed a petition for post-conviction relief pursuant to R.C Defendant also filed a motion for expert assistance and for appointment of counsel. Defendant raised no challenge to the evidence supporting the firearm specifications. Pursuant to a decision filed on December 23, 1996, and judgment filed on December 26, 1997, the trial court denied the petition, the motions for expert assistance and appointment of counsel, and the earlier "nunc pro tunc" motion. Insofar as the post-conviction petition was concerned, the trial court determined that defendant's claims were barred by res judicata. The court also determined that defendant had failed to provide sufficient evidentiary documentation to support an ineffective-counsel claim. The 10th District Court of Appeals affirmed the denial of post-conviction relief on June 30, State v. Jackson (June 30, 1998), Franklin App. No. 97AP-1660, unreported. This Court again declined jurisdiction. State v. Jackson ( 1998), 83 Ohio St.3d 1473.

5 On February 1, 2001, defendant filed another "nunc pro tunc motion for sentence modification." Defendant claimed that his three-year prison terms for the firearm specifications were unconstitutional because, although witnesses stated that defendant fired a gun, the police allegedly knew they had the wrong gun. Defendant asserted that he only had a blank gun. Defendant did not provide evidentiary documentation. The State opposed the motion. On March 22, 2001, the trial court filed a decision denying the nunc pro tunc motion. The court noted that the motion was essentially a petition for post-conviction relief and, as such, it was time-barred. Defendant filed another appeal with the 10t' District Court of Appeals from the March 22nd decision, Franklin App. No. O1AP , and was again denied with the Court ruling in favor the State and upholding the trial courts decision. ARGUMENT Relator has not stated a claim upon which relief can be granted. In considering a motion to dismiss for failure to state a claim, the Court must construe all material allegations in the Complaint and all inferences that may be reasonably drawn there from in favor of the nonmoving party. Fahnbulleh v. Strahan (1995), 73 Ohio St.3d 666. In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt from the complaint that plaintiff can prove no set of facts warranting relief. State ex rel. Jennings v. Nurre (1995), 72 Ohio St.3d 596; York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d 143. Relator has not presented any new to the Court and the issues he did present are barred by res judicata. No new evidence has been presented, and the time has long past for post-conviction relief.

6 After 22 years Relator has made numerous appearances and motions recieiving at least four rulings by the 10ffi District Court of Appeals, and three times he's had jurisdiction denied by this Court. In addition Relator has not complied with the statutory requirements of R.C since he did not provide "a statement that sets forth the balance in the inmate account of the inmate for each of the preceding six months, as certified by the institutional cashier." Compliance with R.C is mandatory and failure to comply with its requirements is grounds for dismissal. State ex rel. Washington v. Ohio Parole Auth. (1999), 87 Ohio St. 3d 258, State ex rel. Zanders v. Ohio Parole Bd. (1998), 82 Ohio St.3d 421. CONCLUSION Relator can prove no set of facts warranting relief and Respondent respectfully moves this Court to dismiss this action pursuant to Rule 12(B)(6). Respectfully submitted, RON O'BRIEN PROSECUTING ATTORNEY FRANKLIN COUNTY, OHIO Jeffrey C. Rogers. ( ) Franklin County Prosecutor's Office, Civil Division 373 S. High St., 13th Floor Columbus, OH (Phone); (Fax) Counselfor Respondent

7 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing Motion and Memorandum in Support has been forwarded this day of 2013 by regular U.S. Mail to: EDWARD JACKSON #A B2-W63 Pickaway Correctional P.O. Box 209 Orient, Ohio Relator, Pro Se ac. Jeffr C. gers ( ) Franklin County Prosecutor's Office, Civil Division