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State ex rel. Allah-U-Akbar v. Ashtabula County Court of Common Pleas

Court of Appeals of Ohio, Eleventh District, Ashtabula

November 20, 2017

STATE OF OHIO, ex rel. MALIK ALLAH-U-AKBAR, Relator,
v.
ASHTABULA COUNTY COURT OF COMMON PLEAS, Respondent.

         Original Action for Writ of Mandamus and/or Prohibition.

          Malik Allah-U-Akbar, pro se, OH 45601 (Relator).

          Nicholas A. Iarocci, Ashtabula County Prosecutor, and Rebecca Divoky, Assistant Prosecutor, Ashtabula County Courthouse, (For Respondent).

          OPINION

          PER CURIAM.

         {¶1} This matter is before the court on a "Writ of Mandamus and/or Prohibition" filed by relator, Malik Allah-U-Akbar, aka Odraye G. Jones, against respondent, Ashtabula County Court of Common Pleas, and respondent's Civ.R. 12(B)(6) motion to dismiss for failure to state a claim. For the reasons that follow, the writ, which we construe as a petition for a writ of mandamus and/or prohibition, is dismissed.

         {¶2} On November 17, 1997, while Ashtabula Police Officer William D. Glover, Jr., was executing an arrest warrant for aggravated robbery against relator and pursuing him on foot, relator turned around, pulled out a revolver, and began shooting at him.

         {¶3} Officer Glover fell to the ground after the first shots, at which time relator walked back to the officer, and, from a distance of two to twelve inches, fired two more shots, one striking the officer below his right eye and the second striking him in the top of the head. Relator then fled the scene.

         {¶4} Ashtabula Police Officer Robert Stell located relator several blocks away from the scene of the shooting, still running. Officer Stell ordered him to stop. Relator ignored the command and continued running. Officer Stell pursued him on foot. Relator led Officer Stell to a nearby apartment. Relator tried to force his way in, but a tenant prevented him from entering. As relator was struggling to enter the apartment, Officer Stell approached him, drew his weapon, and ordered him to the ground. Relator threw his revolver in nearby shrubbery. Officer Stell again ordered him to the ground and, this time, he complied. Officer Stell held him at gunpoint until assistance arrived. Officers recovered the weapon and relator was arrested. The gun was later matched to fired cartridge casings recovered at the scene of the shooting, to live cartridges found on relator at the time of his arrest, and to bullets taken from Officer Glover's body.

         {¶5} Officer Glover was life-flighted to Cleveland's Metro Hospital, where it was found he sustained substantial brain damage. He died from his gunshot wounds the following morning.

         {¶6} The state charged relator with aggravated murder with prior calculation and design with a specification that relator killed the officer for the purpose of escaping apprehension for an earlier aggravated robbery offense.

         {¶7} On May 26, 1998, the jury found relator guilty as charged, and the case proceeded to the penalty phase. The jury recommended that he be sentenced to death. The trial court concurred. On June 8, 1998, the trial court sentenced him to death.

         {¶8} While relator's murder case was being tried, another indictment charging him with two counts of aggravated robbery was pending. After relator was sentenced to death, on June 9, 1998, the state nolled the aggravated robbery case and the court dismissed it without prejudice.

         {¶9} Relator appealed to the Supreme Court of Ohio, and, in State v. Jones, 91 Ohio St.3d 335 (2001), the Court affirmed his conviction. The Ohio Supreme Court, in State v. Jones, 92 Ohio St.3d 1421 (2001), granted relator's motion to stay execution pending exhaustion of his state post-conviction remedies.

         {¶10} Subsequently, relator sought post-conviction relief, which the trial court denied. This court, in State v. Jones, 11th Dist. Ashtabula No. 2000-A-0083, 2002-Ohio-2074, affirmed the trial court's judgment. Relator also filed a motion for relief from judgment. The trial court denied that motion and, in State v. Jones, 11th Dist. ...


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