IN THE SUPREME COURT OF OHIONO. 08-1485

STATE OF OHIO EX. REL.MICHAEL OKO501 THOMPSON RD.CONNEAUT, OH 44030

Realtor

-Vs-

NANCY R. MCDONNELL, JUDGE1200 ONTARIO STREETCLEVELAND, OHIO 44113

AND

JUDGE S OF EIGHT DISTRICTCOURT OF APPEALSONE LAKESIDE AVE.CLEVELAND, OH 44113

Respondents

sp I a Z006CLERK CF COURT

SUPREME COURT OF OHIO

Realtor, Michaell Oko, Pro Se, hereby seeks leave to amend his petition to add a newly

discovered found on page 15 of the appearance docket sheet in the criminal Case No. 447702.

The docket sheet in this case indicates that first respondent never rendered ruling realtor's

motion to dismiss indictment prior to proceeding to trial.

Realtor discovered this error on August 22, 2008 upon careful review of the court record

in this case. As a result of this new discovery, realtor request leave to amend and supplement

attached leave to his first amended Complaint in Support of the Writ of Mandamus: Which

states:

First Respondent, Judge McDonnell should Be Compelled to Decide Realtor's 2005Pretrial Motion to Dismiss Indictment Filed on November 15, 2995. See MemorandamJSupport of relator's petition for writ of mandamusrespondent's motion to dismiss. To avoid duplicity of the p1relied on the argument presented in support of this new clai

REALTOR'S MOTION FORLEAVE TO AMEND PETION.(ATTACHED HERETO IS THEAMENDED PETITION.

_^

In support of Motion for Leave, Relator incorporates herein an affidavit setting forthgrounds for relief.

ResRectfully Submitted

,LG 4-RMichael Oko501 Thompson RoadConneaut, Ohio 44030

CERTIFICATE OF SERVICE

A true copy of the foregoing Motion for Leave has been sent to Counsel for theRespondent, Cuyahoga County Prosecutor's O£fice at 1200 Ontario street, Cleveland,Ohio 44113 via United states mail On f j.( V^day rs '.2008

IN THE SUPREME COURT OF OHIO

NO. 08-1485

STATE OF OHIO AFFIDAVITCOUNTY OF ASHTABULA :

I, 'MICBAEL OKO, REALTOR AEREBE STATES UNDER OATH THEFOLLOWING:

That I'm the realtor in the above caption case.

That on August 22, 2008, realtor upon careful review of the docket sheet of CriminalCase found that trial judge did not rule/decide realtor's Motion to Dismiss Indictment.

That the court proceeded to trial without a ruling to the said motion filed onNovember 15,2005.

Realtor was prevented from raising this issue on the original petition because realtorwas not aware of the error with due diligence.

Wherefore realtor requests that leave be granted for purpose of reviewing attachedamended petition.

ichael Oko501 Thompson Rd.Conneaut, Oh 44030

SWORN TO IN MY PRESENCE ON THIS -A DAY OF oJ6?C^'(^Ei^ ,2008.

NOTARY PUBLIC

DAkHNE D. WILSONNotgry Pu*, State Of Ohio

Recerdedln Ashtabula CountyMy Comniission Expires

Slptember 5, 2012

IN THE SUPMIE (AURT OF OHIO

NO. 08-1485

STATE OF OHIO E°. REL.NIICI3A-v'"L. OKO501 THO^ I'SON RD.CONNEAUT, OFiIO 44030

Realtor

-Vs-

NANCY R. MCDONNE«,, JUDGE1200 ONTARIO STREETCLEVELAND, OHIO 44113

AND

JUDGE S OF EIGflT DISTRICTCOURT OF APPEALSONE LAKESIDE AVE.CLEVELAND, OH 44113

Respondents

REAi.110R' S FIRST AMENDFD CRft'LAINT

MIQ3AEL QK0501 Thompson Rd.Conneaut, Ohio 44030

Realtor, pro se

WILLIAM D. LKASONCuyahoga County Prosecutor1200 Ontario Street, 9th FloorCleveland, Onio 44113

Counsel for Respondent`s

IN THE SUPRIM OOURT OF OHIO

NO. 08-1485

STATE OF OHIO Ex. Rel.

MICHAEL OKORelator,

vs.

NANCY R. MCDONNELL et. al.

Respondent,

))))))

FIRST APMEID CM4P1J1I@TP)))

Upon careful review of the certified cooy of the appearance

docket of the court of common please case no. CR-447702, presided by

First Respondent, Relator, Michael Oko, pro se found that the record

is devoid of a decision in his motion to dismiss indictment based upon

unconstitutional conduct of the Law Enforcement Officers and defect on

the indictment (See page 15 of the appearance docket attached to the

original complaint).

Relator moves to add that First Respondent be compelled to rule

on this "motion to dismiss indictment" as well. Relator is prejudiced

by the court refusal to decide these 2005 pretrial motions. Thus no

challenged to the ruling could be taken because of lack of finality.

'Ihis amendment would not prejudice respondent's.

Wnerefore, it is requested that in addition to the original

complaint, Judge McDonnell be ordered to adjudicate on Relator's

Motion to Dismiss Indictment filed pro se in 2005.

oD5T Q 4 2(?QO

CI.ERKOFQOURTSUPREME CQURTOFOHIO

i3 As'_k'^iM^.c e ) to501 Thompson Rd.Conneaut, OH 44030

>

GEL2TIFICATE OF SERVICE

Tiiis is to certify that a copy of this First Amended Complaint

has been sent to Cuyaho;a County Prosecutors office at 1200 Ontario

Street, Cleveland, OH 44113 via U.S. Mail on ^`day of ^ 1^,L^'2008.

e^. r1.^ t (,^^'^.

N1IC^L^L^L OKO

IN THE SUPREME OODRf OF OHIO

NO. 08-1485

STATE OF Oi{IO Fc. Rel.

MICHAF,L 0'CORelator,

vs.

r1l;NCY R. MCi70fTi',ELLJUDGE, COURT OF COMMcIV PLEASet. al.

Respondent,

))))))) Ml7fI0N TO TRANSMT^ THE RHODRD)))

VEDSEP 0 4 2008

CLERK OF COURTSUPREMECOURTOFOHIO

Relator, Michae7. Oko, pro se moves that the clerk of the court

of co-unon pleas, Cuyahoga County, Ohio be ordered to transmit for this

court's review the following record:

04-CR-447702

A. A certified copy of appearance docket, acco:npanied by ajournalized and certified copies of journal entries on;

1. Motion to appoint expert filed on 11/15/2005.

2. Motion to dismiss indictment.

3. All journal entries ruled on by the judge on12/19/2005.

CASE N0. 07-090216B. Produce appearance docket and the following record;

1. Journal entry of decision to motion for transcriptof proceeding filed on August 29, 2007.

2. A decision deny motion for extension of time.

Wherefore, Relator states these record are relevant in the

determination of the subject matter action and should provided for

this court's review.

MICHAEL OKO

Res se tfully Sub:nittedl ,

IN THE SUPRRE COURT OF OHIO

NO. 08-1485

STATE OF OHIO MCC. REL.MIC?-IAEL 01(0501 THOMPSON RD.CYJNN^'^UT, OHIO 44030

Realtor

-Vs-

NA)?CY R. MCDON°?ELL, JUDGE1200 ONTARIO STREETCLEVELAt^'D, OHIO 44113

A1VD

JUDGE S OF EIGI?T DISTRICTCOURT OF APPEALSONE L.AKESIDE AVE.CLEVELAND, OHIO 44113

Respondents

MEtiORANDOM OF REALTDR IN SUPPORTOF GIRIT OF MANDAMUS

MICIiAEL OKO501 Tnompson Rd.Conneaut, Ohio 44030

Realtor, pro se

Williatn D. MasonCuyahoga County Prosecutor1200 Ontario Street, 9th FloorCleveland, Ohio 44113

Counsel for Respondent's

TABLE OF (7f'fNI'ENTS

Page(s)

Table of authorities ............................................. i-iv

ISSUES PRESEiV'I'ED FOR REVIEW

]. WHETHER TRIAL JUDGE, MCDONNELL SHOULD BE ORDERED TO DECIDERF.LATOR'S PENDING E9IDElVTIARY PRE-TRI.AL MCITION FORINDEPENDENT EKPE'RT EXAMINER OF STATE KEY EVIDENCE (AUDIOTAPE) ALLEGED TO FIAVk: BEEN ALTERED .......................

2. FJHET[•IER TRIAJ.. JUDGE, MCDO IlNELL BE ORDERED TO ISSUE FINDINGSOF FACTS A.ND CONCLUSION OF LAW BY SIGNING JOURNAL FNTRY 2)GRANT ACCESS TO TRr-1NSCRIPT 3) GRAND JURY PIINUTES.........

G7HFniE.R TRIAL JUDGE, MCDONNELL COMMITTN;D JUDICIALINEFFICENCY AND DISINTEERESTEDNESS BY NEGLFCTING HE.ft DUTY INFAILING TO ADJUDICATE MATTERS BROUGHT BEFORE ?iER.........

4. WHl?LHER T"HE JUDGES OF 'IHE COURT OF APPEALS BE ORDERED 'IC)GRA_NT INDIGENT RELATOR ACCESS TO TRIAL TRANSCRIPT TOFACILITATE POST-CONVICTION BRIEF .........................

Statement of the case and facts ................................ 1-5

RELIEF RDQDE4'PIDA. Relator respectfully requests that this Honorable Court

order:

1) First respondent, Judge Nancy R. McDonneLi to decide apending 2005, Relator's pre-trial evidentiary motion foran independent expert examiner of state key evidence(audio tape) alleged to have been altered. 2) issue asigned journalized finding of fact and conclusion of lawwith respect to post-conviction relief, 3) grant relatoraccess to Grand Jury minutes and 4) an order confiningthis respondent to her lawful duty in the interest of thepublic .................................................

B. Order second respondents, Judges of the Court of Appeal,Eight District to grant relators request for transcriptsto prepare his post-conviction brief and vacate thedismissal of appeals by permitting relator to file hisbrief upon availability of transcript to indigentrelator ................................................

Conclusion .. .................................................Certificate of Service .......................................

Appendix - Trial Court Docketing Statement ...................

TABLE OF AUTHORITIES

Pa e(s

CASES:

Bank of Nova Scotia v. United States, (1988)487 U.S. 250 .......... .. ......... ........ . . 18

Barker v. Wingo, 407 U.S. 514 92 Sct. 2182(1972) .......................................... 12

Benton v. Maryland, 395 U.S. 784 (1969)......... 6

Boggs v. Springfield Local School Dist. Bd.of Edn. 72 Ohio St. 3d 94 ....................... 14

Campbell v. Louisiana (1998) 523 U.S. 392....... 17

Dresher v. Burt (1996) 75 Ohio St. 3d 280....... 9

Fuentes v. Shevin, 407 U.S. 67 (1972) ........... 7

Griffin v. Illinois, 351 U.S. 12 (1956)......... 16

Groppi v. Leslie, 404 U.S. 496 (1972) ........... 7

lMapp v. Ohio, 376 U.S. 643 (1951) ............ .. 6

Moore v. East Cleveland, 431 U.S. 494 (1977).... 7

New York v. Hill 120 Set. 659 (2000) ............ 12

O'Brien v. University Common Tenants Union(1975), 42 Ohio St. 2d 242 ...................... 13

State ex. rel. Baxter v. Manchester (1944),143 Ohio St. 48 ................. ............. 17

State ex. rel. Boggs v. Springfield Lo¢alSchool Dist. Bd. of Edn. (1995), 72 Ohio St.3d 94 ................... . ............... .. 14

Malloy v. Hogan, 378 U.S. 1489 (1964) ........... 6

flDistrict of Iowa, 490 U.S. 296 (1989) ........... 7,9

Knickerbocker Ins. Co. of Chicago v.Comstock, 83 U.S. 258 (1872) .... .. .............. 7, 10

Mallard v. U.S. District Court for Southern

iHaines v. Kerner, 404 U.S. 519 (1972) ........... 8

ii

Page(s)

State ex. rel. Brown v. Shoemaker, (1988) 38Ohio St. 3d 344 ................................. 8

State ex. rel. Burton v. Smith (1963) 174Ohio St. 2d 429 ................................. 18

State ex. rel. Clifton v. Howard (1929), 121Ohio St. 607 .................................... 17

State ex. rel. Ferrell v. Clark, 13 Ohio St.3d 3, 469 N.E. 2d 843 (1984) .................... 14

State ex. rel. Grady v. State EmployeeRelations Board (1997), 78 Ohio St. 3d 181...... 8

State ex. rel. Heck v. Kessler (1995), 72Ohio St. 3d 78 .................................. 10

State ex. rel. Henson v. Guemsey Cty. Bd. ofcommrs, (1992), 65 Ohio St. 3d 545 .............. 13

State ex. rel. Konoff v. Moon, (1997), 79Ohio St. 3d 210 .............................. 12

State ex. rel. Murr v. Thierry, (1987) 34Ohio St. 3d 45 .................................. 16

State ex. rel. Partee v. McMahon (1963), 175Ohio St. 2d 243 ................................. 16

State ex. rel. Poitain v. Mathews (1979), 59Ohio St. 2d 29 ..................... ............. 10

State ex. rel. Sharif v. Judge NancyMcbonnell (2001), 91 Ohio St. 3d 46 ............. 10

State ex. rel. Spirko v. Judges of the Courtof Ap eals 3rd District, 27 Ohio St. 3d 13,(1986^ .......................................... 7,16

State ex. rel. Tucker v. Davis (1913), 9Oklahoma, Crim. 94, 97, 130 P. 962, 963......... 16

State ex. re1. Wiegel v. Randall (1959) 1.60Ohio St. 2d 327 ................................. 17

State v. Bewley (2007) (unreported) 2007 WL4554150 ............................. ........ .. 11

State v. Davidson (1985) 17 Ohio St. 3d 132..... 9,10,11

State v. Hester (1976), 45 Ohio St. 2d 71....... 19

iii

Page(s)

State v. Lester (1975), 41 Ohio St. 2d 51 ....... 15,19

State v. Mapson (1982) 1 Ohio St. 3d 217 ........ 14,19

State v. Noble (2007) (unreported) 2007 WL4554247 .................... .................. 11

State v. Oko, Cuyahoga App. No. 87539 ........... 4,5

State v. Oko, Cuyahoga App. No. 90261........... 4,6

Vahila v. Hall (1997), 77 Ohio St. 3d 42........ 9

Will v. Calvert Fire Ins. Co. 437 U.S. 655,661,-62, 98 Sct. 2552 (1978) ................... 7,10

Youngberg v. Romeo, 457 U.S. 307 (1982)......... 7

CONSTITUTIONAL PROVISIONS; STATUTES:

Crim. Rule 12 (F) ............ .. ........ 5,9,11Article IV Section 2 ( B) ........................ 7Civil Rule 56 ................................ 8R.C. 2953.21 (c) ................................ 9,14,15Article 1, Sec. 16 ........................... 15,16Section 2925.51 ( E) .......................... 19Crim. Rule 12 (B) ............................... 11,13Crim. Rule 12 (E) ................... ............ 11Crim. Rule 12 (K) ............................... 11Crim. Rule 12 (A) ............................... 1314th Am ndme t . ...... 16Crim. RuTe 32 ?B) and (C) ...............R.C. 2303.12 . .......................................... 15Civ. R. 58 (A) ........................................... 18

STATEMENT OF THE CASE AND FACT

The facts underlying this case arises from the arrest

of a Cleveland man, Sherwin D. Williams, also known as,

"Guy", on November, 5, 2003. Williams was arrested for

selling drugs to an undercover Cleveland police officer.

One week after his arrest, Williams attempted to set-up in

exchange for liency one Mr. Anderson. That attempt failed.

On November 18, 2003, Relator was at Shaker Heights

ublic Library, located on Lee Road / Chagrin Blvd. in the

ity of Shaker Heights when Relator was asked by a lady,

obbie Cayson, Relator had recently just met, to assist in

ffering here cousin, Mr. Williams a ride from East 112 to

ast 119 Cleveland. Relator agreed to help, out of human

indness with little or no consideration to the background

f Mr. Williams whom, Cayson had previously introduced him

o relator as cousin.

This act of goodwill performance resulted to a hostile

nd brutal arrest of relator on November 18, 2003.

ailliams, a habitual criminal with an extensive drug

record, deliberately and falsely elicited information

implicating relator. Relator has no criminal background

other than traffic violations. Williams with the help of

Cayson used relator as a"sacrificial lamb" for his

riminal enterprise.

On January 26, 2004, Relator was indicted by Cuyahoga

ounty Grand Jury on four counts of Aggravated Felony one

drug charges (Trafficking; offer to sell; preparation for

sell; and possession of drug) and Felony five possession

of criminal tools.

Relators retained counsel withdrew his appearance due

to relators inability to pay his legal fees. On May 18,

2004 under di.minished mental capacity caused by family

tragedy, relator was coerced by his court appointed

counsel, Ms. Oakar into entering an involuntary plea to

one count ciiarge of Felony onw, aggravated drug

trafficking and was sentenced by respondent to three (3)

years prison term on crime relator did not commit.

On May 30, 2004, Relator filed a motion to withdraw

his plea, which was denied by respondent. Relator filed

motion for leave to file delayed appeals. Court of appeals

granted relators leave and an appeal was taken. On July

21, 2005, the Court of Appeals vacated relator's invalid

plea and remanded the case to the trial court for further

proceedings.

On September 16, 2005, Relator was removed from state

prison to Cuyahoga County Jail after,spending 57 days in

prison after the court vacated his plea. On November 15,

2005, Relator filed pretrial motions, one of which was a

motion to have the state's key physical evidence, and

audio tape analyzed by an expert. Relator challenged the

authenticity of the tape, adding that the audio tape

evidence had been edited and altered. Specifically,

relator asserts that a portion of the conversation was

deleted from the tape and additional recording was placed

on the tape.

In addition to other pretrial motions, relator

requested for dismissal of indictment based upon speedy

trial violation, Police Misconduct and Double Jeopardy.

On December 19, 2005, respondent prior to trial ruled

on all pretrial motions, but declined to rule on the

request to obtain expert analysis of the audio tape

evidence. Respondent also denied almost all other pretrial

motions without legal findings. (See Appendix marked "B").

A ruling granting expert analysis of the disputed

evidence could, arguably affect the entire case. The

result of the expert inquiry if favorable to relator would

have resulted to the suppression of the evidence.

On December 19, 2005, without a ruling on the motion,

respondent proceeded to jury trial and allowed this

illegally obtained evidence to be presented to the jury

and based upon this illegally obtained evidence, relator

was found guilty.

On December 21, 2005, Respondent imposed an enhanced

sentence from three (3) years to eight (8) years on drug

trafficking, eight (8) years on offer to sell drug, eight

(8) years on preparation of drug, eight (8) years on

possession of drug, one (1) year on possession of criminal

tools, and five (5) years of post release control. Total

sentence of thirty-eight (38) years.

Respondent ordered that the sentences be ran

concurrent plus the five years of post release control. A

direct appeal of conviction and sentence was taken in

State v. Oko, Cuyahoga App. No. 87539.

On September 6, 2006, Relator without benefit of

counsel filed a petition for post-conviction relief

accompanied by request for evidentiary hearing and motion

for a free copy of trial tr.dnscript at state expense to

facilitate post-conviction proceeding in State v. Oko

Cuyahoga App. No. 90261. Relator's request for leave to

file Supplemental Brief and access to transeript was

denied. (: ..

On October 11, 2006, without conducting an evidentiary

hearing of claims, Respondent dismissed petition, denied

request for free copy of transcript to indgent Relator.

Respondent did not issue findings of fact and concl,usion

of law. (

Relator asserts in his petition for post-conviction

relief claims 1) Constructive denial of assistance of

counsel; 2) Denial of impartial tribunal; 3) Vindictive

prosecution; 4) Conflict free assistance of counsel /

ineffective assistance of counsel; 5) Unconstitutional

conducts of the arresting officers and the irregularity in

the grand jury selection.

The court appointed appellate counsel did not address

these issues on relators direct appeal. On Febuary 8,

2007, the appellate affirmed the trial court judgment and

-4-

conviction in App. No. 87539, 2007-538.

On November 30, 2006, Relator filed a motion for

findings of fact and conclusion of law. Respondent refused

to issue findings of fact and conclusions of law.

Prior to requesting findings, relator filed a motion

for access to Grand Jury minutes to address his claim of

irregularities in the Grand Jury process. Respondent

denied requests without service of decision on relator.

Due to Respondent's failure to: 1) issue findings of

fact and conclusions of law; 2) a ruling on pretrial

motion for expert analysis of state key evidence; 3) grant

an access to free transcript of proceeding and 4) Grand

Jury minutes, relator petitioned the court for a writ of

mandamus.

Relator first sought to compel respondent to issue

findings of fact and conclusions of law and subsequently

sought leave to file supplemental petition accompanied by

a proposed supplemental petition requesting that

respondent rule on pretrial as required by Crim. Rule 12

(F) as well as Grand Jury access to transcripts of

proceeding at trial and Grand Jury.

Until relator had filed petition for extraordinary

writ on or about May 2007, respondent on July 11, 2007

filed unsigned "findings of fact and conclusions of law",

but declined to address the pretrial motion, Grand Jury

minutes and free copy of transcripts. (See appendix "B")

On July 30, 2007, Relator filed a Notice of Appeals of

his denial of post-conviction in State v. Oko Cuyahoga

App. No. 90261, while his petition for writ of mandamus is

pending relator renewed his motion for a free copy of the

trial transcript at state expense to prepare his merit

brief. Appellate Court denied request for transcript,

Relator filed a motion to stay action in poat-

conviction appeals No. 90261 pending ruling on the writ of

mandamus, which was premised upon the fact that relator

cannot prepare his brief without a transcript o^

proceeding. The Court of Appeals dismissed the post-

conviction appeals and the writ of mandamus without

considering the issues presented to the court for review.;. :

For the foregoing reasons, Relator brings this acti

and advances the following argument in support of relief.

I. STANDARD OF REVIEW:

A. CONSTITUTIONAL AND STATUTORY SAFEGUARD

A de.fendant in a criminal proceeding enjoys three

constitutional protections: First, the protection of the

Bill of Rights thus, the state as well as the Federal

Government must comply with the commands of statutory and

constitutional law. Mapp v. Ohio, 376 U.S. 643 (1951);

Malloy v. Hogan, 378 U.S. 1489 (1964) and Benton v.

Maryland, 395 U.S. 784 (1969).

Second, the substantive due process clause bars

certain arbitrary governmental actions, "regardless of the

-6-

fairness of the procedures used to implement them". Moore

v. East Cleveland, 431 U.S. 494 (1977) and Youngberg v.

Romeo, 457 U.S. 307 (1982). Thirdly, 'Procedural due

process' guarantees a fair procedure that states may not

*** deprive one of his procedural safeguards. Groppi v.

Leslie, 404 U.S. 496 (1972); In Re: Oliver, 333 U.S. 257

( 1948); and Fuentes v. Shevin, 407 U.S. 67 ( 1972).

B. EXTRAORDINARY WRIT:

Under all extraordinary writs act, the standard of

review of the writ of mandamus is a procedural rules and

Court of Appeals holds inherent jurisdiction to review the

trial court refusal to discharge its judicial function

pursuant to the jurisdiction of the Supreme Court of Ohio

outlined in Article IV, Seetion 2 (B) of the Ohio

Constitution.

On appeal this court applies a de novo standard of

review of a dismissal of the writ of mandamus by the lower

court. A court of appeals should issue a writ of mandamus

to confine trial courts to a lawful exercise of its

prescribed duty when it had authority to do so. State ex.

rel. Spirko v. Judges of the Court of Appeals 3rd

District, 27 Ohio St. 3d 13, ( 1986); Mallard v. U.S.

Distriet Court for Southern District of Iowa, 490 U.S. 296

(1989) and Will v. Calvert Fire Ins. Co. 437 U.S. 655

( 1978) (citing Knickerbocker Ins. Co. of Chicago v.

Cowstock, 83 U.S. 258 (1872).

A party seeking extraordinary writ of mandamus must both show that

there is a clear entitlement to the relief requested and that

irreparable har{n will likely occur, if the writ is withheld. (See

State ex. rel. Brown v. Shoeoaker, (1988) 38 Ohio St. 3d 344.

ABCUMERT AND IAW

STANDARD OF PRO SE P'I.FADING:

A pro se pleading must be liberally construed with socne degree of

flexibility caTpared to that of a lawyer. Haines v. Kerner, 404 U.S.

519 (1972) Boag v. MacDoygall, 454 U.S. 364 ( 1982) and McGorm3.ck v.

City of (hicago, 230 F. 3d 319 (7th Cir. 2000). " if a court can

reasonably read a pro se pleading to state valid claim on wnich

litigant could prevail it should do so despite failure to cite proper

legal authority, confusion of legal theories, poor syntax and sentence

construction, or litigants un-farmilarities with the pleading

requirement."

Pro se litigant also enjoys five procedural protections: 1)

process issued and served; 2) Notice of any motion thereafter made by

defendant/respondent or the court to dismiss the complaint and the

grounds therefor; 3) An opportunity to at least submit a written

memorandum in opposition to such motion; 4) in the event of dismissal,

a statement of the ground therefor; and 5) an opportunity to amend the

complaint to overcome deficency unless it clearly appears from the

complaint that the dificency cannot be overcome by an amendment. Noll

v. Carlson, 809 F.2d 1446 (9th Cir. 1987).

Pro se litigant should not unreasonably be subjected to stringent

procedural niceties. Papantony v. Hedrick 215 F. 3d. 863 (8th Cir.

2000); Houston v. La¢k, 487 U.S. 266 (1988). A defendant represented

by court appointed appellate counsel has a right to submit pro se

brief on appeal. Vega v. JoYmson, 149 F. 3d 354 (5th Gi.r. 1998).

To facilitate a post-conviction appeals, an indigent pro se

petitioner is entitled to one set of complete record of transcript of

the previous proceedings at state expense, for purpose of an effective

defense. A denial of a request is a denial of equal protection under

the 14th Amendment of the United States Constitution. and Article 1

Sec. 2, of the Ohio Constitution. (See Green v. Brigano (S.D. ahio

1995), 904 F. Stipp. 675, 677, Tdnere the court states;

"The integrity of the criminal justice system requiresthat everyone rich or poor receive an equal chance to usethe system mechanisms" "There can be no equal justicewhere the kind of trial/appeal a man gets depends on theamount of money he has"

1. FIRST ISSUE FOR RE{TIM:

THE TRIAL JUDGE SHOULD BE ORDERED 117 DECIDE DEFENDANT'S PENDING2005 PRF,TRIAI, EVIDERTTTARY MOTION, ISSUE FINDING'S OF FACT ANDCONCLUSION OF LAw, GRANT REQUEST FOR TP.A.NSGRIPT AND GRAND JURYMINUTES.

A. General Principles and Standard of Review.

11ie Supreme Court should issue a writ of mandamus in dnich confine

a trial court to lawful exercise it's authority when she has a duty to

do so. Mallard v. U.S. Dist. Cotrt, 490 U.S. 296, 308, 109 S. Ct. 1814

(1989) "There can be no doubt that, utnere [ a trial court ]

persistently and without reason refuses to adjudicate a

case properly before it, the court of appeals may issue a

writ "in order that [shej may exercise the jurisdiction of

review given by law". Will v. Calvert Fire Ins. Co., 437

U.S. 655, 661-62, 98 Set. 2552 ( 1978) citing

knickerbocker Ins. Co. of Chiago v. Comstock, 83 U.S. 258,

(1872).

A party seeking mandamus "must show both that there is

a clear entitlement to the relief requested and that

irreparable harm will likely occur, if the writ is

withheld". Id.

. PRETRIAL EVIDENTIARY RULING:

LAW-OF-THE-CASE DOCTRINE

Underthe Law-of-the-case doctrine, Ohio Supreme Coa_trt

n State ex. rel. Sharif v. Judge Nancy McDonnell ( 2001),

91 Ohio St. 3d 46 held that the writ of mandamus is a

proper remedy to enforce the law-of-the-case doctrine,

adding that the court of appeals properly granted mandamus

to compel Judge McDonnell in exercise of her judicial

function by issuing findings of fact and conclusion of

law. State ex. rel. Heck v. Kessler ( 1995), 72 Ohio St. 3d

78 and State ex. rel. Poitain v. Mathews (1979), 59 Ohio

St. 2d 29 (writ granted).

While fundamentally unsupported by the constitutional

principle espoused in this honorable court's decision in

State v. Davidson ( 1985), 17 Ohio St. 3d 132, and other

ases, the trial judge in the instant case declined to

-10-

rule on an evidentiary issue prior to trial was a

consideration explicity included within Ohio Crim. Rules

12 (B), 12 (E), 12 (F), and 12 (K); that mandate a

pretrial ruling on matter. State v. Noble (2007)

(unreported) 2007 WL 4554247 and State v. Bewley (2007)

(unreported) 2007 WL 4554150.

In Nolan v. Nolan, (1984); 11 Ohio St. 3d 1, Syllabus

of the case:

"Absent extraordinary circumstances, suchas an intervening decision by the SupremeCourt, an inferior court has no discretionto disregard the mandate of a SuperiorCourt in a prior appeal in the same case'".

Under the governing principle enumerated in State v.

Davidson supra, Relator's motion which challenges the

authenticity of the key evidence used by the state to

convict relator is a matter that was "sufficently capable

of determination without the trial of the general issue"

for which there will be no "good cause" to defer ruling

until trial. Crim. Rule 12 (b).

In the instant case Relator's motion to have a state

key evidence ( an unsealed audio tape analyzed by expert )

based upon the allegation that the tape was altered or

edited by state agents constitutes 9 motion to suppress

subject to mandatory pretrial ruling.

Relator asserts that a portion of the tapped

conversation where he was disgusted with Williams was

deleted and additional recording not part . of he

conversation was placed on the tape.

In fact, neither the trial court nor the prosecutor

has ever suggested otherwise. Thus, it appears to be

conceded that this issue must decided before trial. After

almost three years of waiting for a tentative ruling to be

memorialized in an final appealable order, there is no

legitimate excuse for further prejudicial delay.

The Respontent's failure to rule promptly on this

evidentiary motion has significantly harmed relator's case

against.the state and the public interest in a fair trial.

The judge's continued failure to rule on only this

issue has caused relator additional irreparable harm,

including serious and adverse consequences of unnecessary

delay in a criminal case. Barker v. Wingo, 407 U.S. 514,

92 Set. 2182 (1972) and New York v. Hill 120 Set. 659

(2000) "Delay can lead to a less accurate outcome as

witnesses become unavailable and memories fade".

This court has pointed out that, it is the trial

court's duty to rule on all motions filed before it State

ex. rel. Konoff v. Moon, (1997), 79 Ohio St. 3d 210. The

writ of mandamus lies to enforce the law-of-the-case

doctrine in this instant action.

C. FAILURE TO ISSUE FINDINGS OF FACT AND CONCLUSION OF

LAW:

A complaint alleging that the trial judge declined to

issue a findings of fact and conclusion of law when trial

Oudge dismissed petition without evidentiary hearing

establishing a genuine issue of material fact to exclude

granting of motion to dismiss under Civil Rule 12 (A) or

12 (B) (6) or summary Judgment.

In State ex. rel. Henson v. Guemsey Cty. Bd. of

Commrs, (1992), 65 Ohio St. 3d 545, This court formulated

the objective standard for determining motion for

dismissal of complaint and compelling findings of fact and

conclusion of law. The court of appeals in the case sub-

judice improperly dismissed Relator's complaint without

consideration to Respondent's duty to issue a findings of

facts and conclusion of law.

A motion to dismiss for failure to state a claim upon

which relief can be granted is procedural and tests the

sufficiency of the complaint. State ex. rel. Henson v.

Guemsey Cty. Bd. of Commrs (1992), 65 Ohio St. 3d 545. In

reviewing the complaint, the court must take all the

material allegations as admitted, and construe all

reasonable inferences in favor of the non-moving party.

Id.

In order for a court to dismiss a complaint for

ailure to state a claim upon which relief can be granted,

't must appear beyond doubt from the complaint that the

on-moving party can prove no set of facts entitling him

o a recovery. O'Brien v. University Common Tenants Union

1975), 42 Ohio St. 2d 242. As such, a complaint for writ

f mandamus is not subject to dismissal under Civ. R. 12

B) (6) if the complaint alleges the existence of a

legal duty the respondent in the lack of an adequate

remedy at Law for Relator with sufficent particularity to

put the respondent on notice of the substance of the claim

being asserted and it appears that relator can prove the

set of facts entitling him to relief. State ex. rel. Boggs

v. Springfield Local School Dist. Bd. of Edn. (1995), 72

Ohio St. 3d 94. See also State ex. re1. Ferrell v. Clark,

13 Ohio St. 3d 3, 496 N.E. 2d 843 ( 1984).

Relator contends that respondent, Judge McDonnell

declined to rule on his pretrial evidentiary motion prior

to trial and at trial Judge McDonnell permitted the

admission of the challenged evidence and the jury used the

evidence to convict relator. In addition, relator asserts

that respondent upon request by motion for findings of

fact and conclusion of law, has refused to issue findings

of fact and conclusion, when respondent denied Post-

Conviction Relief without conducting an evidentiary

hearing as mandated in R.C. 2953.21 (C) and State v.

Mapson (1982), 1 Ohio St. 3d 217.

In State v. Mapson, Ohio Supreme Court stated:

* * * The obvious reason for requiringfindings are "* * * to appraise petitionerof the grounds for the judgment of thetrial court and to enable the appellatecourt to properly determine appeals insuch a cause." Jones v. State ( 1966), 8Ohio St. 2d 21, 22 [.] * * * The existenceof findings and conclusions are essentialin order to prosecute an appeal. Withoutthem; a petitioner knows no more than helost and hence is effectively procludedfrom making a reasoned appeal. Inaddition, the failure of a trial judge tomake the requisite findings prevents any

meaningful judicial review, for it is thefindings and the conclusions which anappellate court reviews for error". Id. at219 (citation omitted).

This court also noted in Lester 41 Ohio St. 2d at page

56, 322 N.E. 2d 656 That "the general purpose of R.C.

2953.21 is to provide judicial review of the allegations

raised in Prisoner's Petition, in order to provide a remedy

for violation of Constitutional Rights".

The record on its face remains undisputed that

Respondent, Judge McDonnell has not met R.C. 2953.21 (C)

requirement. Essentially, respondent submitted to the court

in support of its motion to dismiss an unsigned and

unjournalized document purported to be a findings of fact

and conclusions of law. (See State ex. rel. White v. Junkin 80

Ohio St. 3d 335, 686 N.E. 2d 267 and R.C. 2303.12

The record also supports relator's argument with

"definite and firm conviction" that the trial judge in this

ase committed a clear error. Infact, the judge acted

nreasonably, unfair and without regard to the basic

rocedural rules.

This court has interpreted R.C. 2953.21 (C) to be

andatory. Article 1, Sec. 16 of the Ohio Constitution and

he 14th Amendment of the United States Constitution states

hat "due process of law is breached when government's

rocedure pass beyond line of tolerable imperfection and

all into field of fundamental unfairness".

Mandamus lie to compel a finding of fact and conclusion

$f law.

-15-

D. FAILURE TO GRANT INDIGENT PRO SE RELATOR FREE ACCESS TO

TRANSCRIPT: By First and Second Respondents.

Relator sought for free copy of transcript to 1)

adequately address his issues at post-conviction and 2)

correct irregularities in the trial court transcript, based

on cumulative fundamental errors at trial. Respondent,

Judge McDonnell denied motion without stating reason

The issue here concerns an access to the court pursuant

to Article 1 See. 16 of Ohio Constitution and the 14th

Amendment to the United States Copnstitution. A transcript

of proceeding at state expense is required for indigent Pro

se petitioner to prepare his post-conviction appeals. State

ex. rel. Murr v. Thierry, ( 1987) 34 Ohio St. 3d 45; State

ex. rel. Partee v. McMahon ( 1963), 175 Ohio St. 2d 243, and

Griffin v. Illinois, 351 U.S. 12 (1956).

Relator was prevented from preparing his brief based on

denial of transcripts and findings of facts and conclusion

of law. This denial constitutes denial of due process which

in turn is a denial of justice as determined by court in

State ex. rel. Spirko v. Judges of the Court of Appeals, 3d

District, ( 1986) 27 Ohio St. 3d 13.

This court in support of its 'Spirko' ruling rely on

State ex. rel. Tucker v. Davis (1913), 9 Oklahoma. Crim.

94, 97, 13U p. 962, 963 quoting the insightful language of

Hon. Judge Allen:

" It would be a cheap subterfuge of ashameless mockery upon justice for thestate to put a man on trial in its court'scharged with an offense which involve hislife, liberty, or character, and then placehim in such a position that he could notprepare to make his defense. It would bejust as unreasonable to place shackles upona man's limbs, and then tell him that it ishis right and duty to defend himselfagainst an impending physical assault, ifthe right of defense exists, it includesand carries with it the right of suchfreedom of action as is essential andnecessary to make such defense complete. infact, there can be no such thing as a legaltrial, unless both parties are allowed areasonable opportunity to prepare tovindicate their rights * * * ".

See also State ex. rel. Baxter v. Manchester ( 1944),

143 Ohio St. 48; State ex. rel. Wiegel v. Randall (1959)

160 Ohio St. 2d 327 and State ex. rel. Clifton v. Howard

(1929), 121 Ohio St. 607. Writs granted in these cases in

the interest of justice, therefore granting writ is

appropriate.

E. FAILURE TO GRANT ACCESS TO GRAND JURY MINUTES:

Relator asserts that racial discrimination infects the

Grand Jury process and compromises the integrity of the

Grand Jury. As a result, relator sought access to the

Grand Jury minutes to better prepare and adequately

address this issue in the interest of justice. Campbell v.

Louisiana.(1998) 523 U.S. 392.

Relator is presently serving a punitive prison term on

a crime, he is completely innocence. This is a case where

prejudice is presumed, because "the structural protection

of the Grand Jury was compromised as to render the

[entire] proceeding fundamentally unfair". Bank of Nova

Scotia v. United States, ( 1988) 487 U.S. 250 and State ex.

rel. Burton v. Smith ( 1963); 174 Ohio St. 2d 429.

Indeed, Relator established a particularized need for

the court to grant access to Grand Jury list/minutes.

II. SFiQ()ND ISSUE FOR REVIM:

THE TRIAL JUDGE COMMITTED JUDICIAL INEFFICENCY ANDDISINTERESTEDNESS BY NEGLECTING HER DUTY IN FAILING TOADJUDICATE ON MATTER SHE IS ELECTED TO PERFORM.

A. Improper Presecntation of Findings of Fact and

Conclusion of law:

It is the universal application of law that the court

speak through its Journal Entry. The respondent in this

case presented to the court of appeals a document marked

"exhibit "C" original petition. This document is purported

to be a Journal Entry supported by a finding of fact and

con¢lusion of law.

Interesting enough, the purported journal entry does

not bear the signature of the judge, issuing the findings.

Also, the document was not journalized. This document is

invalid. And in violation of Crim. Rule 32 (C) and Civ. R. 58 (A).

In case sub-judice, Judge McDonnell denied virtually

all the pretrial motions without findings, but declined to

rule on one evidentiary pretrial motion prior to trial.

Trial. Court also declined to issue findings of fact and

conclusion of law, when it dismissed petition contrary to

-18-

State v. Lester ( 1975), 41 Ohio St. 2d 51 Paragraph two of

the syllabus.

The Lester court and State v. Hester (1976), 45 Ohio

St. 2d 71, held that unless trial court follow the basic

rule by "file findings on all issues presented, appeals

may well be piecemeal;... A time-consuming series of

appeals could well result * * zk". Id.

B. JUDICIAL LACKADAISICALNESS:

The Trial Judge committed "judicial negligence in

failing to follow the relatively simple statutorily

prescribed procedure" to avoid piecemeal litigation. State

v. Mapson (1982) 1 Ohio St. 3d 217. It should be noted

that this court has previously determined a similar case

relative to this respondent.

SUMMARY CONCLUSION

Section 2925.51 ( E) of the Ohio revised code provides:

Any person who is accused of a violationof this chapter or a violation of chapter 3719of the revised code is entitled upon writtenrequest made * * * to have the evidence thatis the basis of alleged violation preservedfor the benifit of independent analysisperformed by a labortory analist employed bythe accused person, or if accused is indigent,appointed by the court

For the foregoing reasons, Relator respectfully

requests that this court grants the foregoing relief and

grant order of mandamus to compel respondent's to carry out

their lawful duty.

Michael Oko501 Thompson Rd.Conneaut, OH 44030

CERTIFICATE OF SERVICE

A true copy of this brief has been served on counsel

for Respondent, Cuyahoga County Prosecutor at 12

Ontario Stree Cleveland, OH 44113 via U.S. Mail on,r^Y^-

day of,^08.

Michael Oko501 Thompson Rd.Conneaut, OH 44030