[Cite as State ex rel. Cunningham v. Ohio Adult Parole Auth., 2020-Ohio-5063.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Anthony Cunningham, :
Relator, :
v. : No. 19AP-748
Ohio Adult Parole Authority, : (REGULAR CALENDAR)
Respondent. :
D E C I S I O N
Rendered on October 27, 2020
On brief: Anthony Cunningham, pro se.
On brief: Dave Yost, Attorney General, and George
Horvath, for respondent.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
KLATT, J.
{¶ 1} Relator, Anthony Cunningham, an inmate incarcerated at Madison
Correctional Institution, commenced this original action in mandamus seeking an order
compelling respondent, Ohio Adult Parole Authority ("OAPA"), to correct alleged errors in
his record, on which OAPA relied in denying relator parole. Relator also seeks an order
compelling the OAPA to conduct a new parole hearing once those errors have been
corrected. In response, the OAPA filed a motion to dismiss based upon relator's alleged
failure to comply with the requirements of R.C. 2969.25(A) and his failure to identify any
substantive errors in his inmate record that prevented him from receiving meaningful
consideration at his parole eligibility hearing.
No. 19AP-748 2
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
we referred this case to a magistrate who issued a decision, including findings of fact and
conclusions of law, which is appended hereto. The magistrate found that the affidavit
relator filed with his complaint failed to comply with R.C. 2969.25(A) because it failed to
accurately list each civil action or appeal of a civil action that relator filed in the previous
five years in any state or federal court. Specifically, the magistrate found that relator's
affidavit (1) misrepresented the disposition of a mandamus action he filed in Franklin C.P.
No. 19CV-3916; (2) failed to accurately identify Cunningham v. Tibbalds, 2014 Ohio Misc.
LEXIS 7973, a habeas corpus action relator filed in the Madison County Court of Common
Pleas; and (3) failed to list two subsequent appeals relator filed in the Madison County
habeas corpus action.1 Because relator's affidavit did not strictly comply with the
requirements of R.C. 2969.25(A), the magistrate has recommended that we dismiss this
case pursuant to Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533.
{¶ 3} Relator has filed an objection to the magistrate's decision. However, relator
makes no argument relevant to the grounds on which the magistrate recommends we
dismiss this action. Relator does not argue that his affidavit complied with the
requirements of R.C. 2969.25(A). Therefore, we overrule relator's objection.
{¶ 4} Following an independent review of this matter, we find that the magistrate
has properly determined the facts and applied the appropriate law. Therefore, we adopt
the magistrate's findings of fact and conclusions of law except for the magistrate's
conclusion that R.C. 2969.25(A) required relator to list Cunningham v. Tibbalds, 2014
Ohio Misc. LEXIS 7973 in his affidavit. As indicated in the footnote above, this case was
1 We note that relator's affidavit does list Franklin C.P. No. 19CV-3916 but, contrary to the requirements of
R.C. 2969.25(A), does not include the case name nor the court in which the case was filed. Relator's affidavit
also lists "case no. 2015-Ohio-1740, Anthony Cunningham v. Terry Tibbles." Presumably, relator meant to
identify Cunningham v. Tibbals. Case No. 2015-1740 is the case number for the discretionary appeal relator
filed in the Supreme Court of Ohio that was denied. December 30, 2015 Case Announcements, 2015-Ohio-
5468. Again, relator's failure to identify the court in which this appeal was brought, and the outcome of the
appeal violates the requirements of R.C. 2969.25(A). Relator also fails to identify in any fashion
Cunningham v. Tibbals, 12th Dist. No. CA2015-01-003, 2015-Ohio-3698, which is the appeal from a
decision of the Madison County Court of Common Pleas overruling relator's petition for habeas corpus.
That failure also violates R.C. 2969.25(A). However, contrary to the magistrate's finding, relator was not
required to list the Madison County Court of Common Pleas case, Cunningham v. Tibbalds, 2014 Ohio
Misc. LEXIS 7973, because that case was filed more than five years before relator filed the mandamus case
at issue here.
No. 19AP-748 3
filed more than five years before relator filed this mandamus action, and therefore, was not
required to be listed. For the reasons set forth in the magistrate's decision, we overrule
relator's objection and dismiss this case.
Objection overruled; writ of mandamus denied; case dismissed.
BEATTY BLUNT and NELSON, JJ., concur.
No. 19AP-748 4
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Anthony Cunningham, :
Relator, :
v. : No. 19AP-748
Ohio Adult Parole Authority, : (REGULAR CALENDAR)
Respondent. :
MAGISTRATE'S DECISION
Rendered on April 9, 2020
Anthony Cunningham, pro se.
Dave Yost, Attorney General, and George Horvath, for
respondent.
IN MANDAMUS
ON RESPONDENT'S MOTION TO DISMISS
{¶ 5} Relator, Anthony Cunningham, has filed this original action requesting this
court issue a writ of mandamus ordering respondent, Ohio Adult Parole Authority
("OAPA") to correct errors in the records upon which the OAPA has relied when denying
relator parole, and ordering the OAPA to conduct a new parole hearing once that
information has been corrected.
Findings of Fact:
{¶ 6} 1. Relator is an inmate currently incarcerated at Madison Correctional
Institution.
{¶ 7} 2. Relator filed this mandamus action on October 31, 2019.
No. 19AP-748 5
{¶ 8} 3. At the time he filed this mandamus action, relator included an affidavit of
prior actions required pursuant to R.C. 2965.25(A). Specifically, relator identified the
following:
On or about May 14, 2019 in case number 19 CV 3916, I filed
a similar Mandamus action, however, defendants claimed not
to have been served. I respectfully requested that the court it
was filed with withdraw the action from the record.
In 2015, I filed a habeas corpus in case in no. 2015 – Ohio –
1740, Anthony Cunningham versus Terry Tibbles.
I have filed other motions bringing the same or similar issues
however, those motions do not meet the requirement because
they were actions invoking the court inherent power to vacate
void actions at any time without preclusion, and are not
subject to being construed as post-conviction petitions in fact
case citations lead courts to ignore post-conviction
procedures.
(Emphasis sic.)
{¶ 9} 4. On December 10, 2019, respondent filed a motion to dismiss asserting that
relator's prior actions affidavit did not meet the requirements of R.C. 2969.25(A), and
further that relator failed to identify any substantive errors in his inmate record that
prevented him from receiving meaningful consideration at his parole eligibility hearing.
{¶ 10} 5. On December 18, 2019, relator filed a response to respondent's motion to
dismiss asserting that his affidavit of prior actions did comply with the requirements of the
statute.
{¶ 11} 6. The matter is currently before the magistrate on respondent's motion to
dismiss and relator's response thereto.
Conclusions of Law:
{¶ 12} For the reasons that follow, it is this magistrate's decision that this court
should grant respondent's motion and dismiss relator's mandamus action.
{¶ 13} In Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, an inmate,
Carlos J. Fuqua, filed in the Allen County Court of Appeals a petition for a writ of habeas
corpus. He requested leave to proceed in forma pauperis but he did not file the affidavit
No. 19AP-748 6
required by R.C. 2969.25(A) describing each civil action or appeal of a civil action that he
had filed in the previous five years in any state or federal court.
{¶ 14} Fuqua's prison warden, Jesse J. Williams, moved to dismiss the petition.
{¶ 15} Fuqua requested leave in the court of appeals to amend his petition with the
affidavit required by R.C. 2969.25(A).
{¶ 16} The court of appeals dismissed the petition for habeas corpus and Fuqua
appealed as of right to the Supreme Court of Ohio.
The Supreme Court of Ohio, in Fuqua at ¶ 9 states:
Fuqua's belated attempt to file the required affidavit does not
excuse his non-compliance. See R.C. 2969.25(A), which
requires that the affidavit be filed "[a]t the time that an
inmate commences a civil action or appeal against a
government entity or employee." (Emphasis added.)
{¶ 17} In Hawkins v. S. Ohio Corr. Facility, 102 Ohio St.3d 299, 2004-Ohio-2893,
an inmate, Jomo Hawkins, petitioned the Scioto County Court of Appeals for a writ of
habeas corpus. However, Hawkins' petition did not contain the R.C. 2725.04(D)
commitment papers nor the affidavit required by R.C. 2969.25(A). Later, Hawkins filed an
un-notarized statement purporting to be his R.C. 2969.25(A) affidavit.
{¶ 18} Following dismissal of his action, Hawkins appealed as of right to the
Supreme Court of Ohio. Citing Fuqua, the Supreme Court affirmed the judgment of the
court of appeals.
{¶ 19} Respondent correctly argues that relator's prior actions affidavit does not
meet the strict requirements of R.C. 2969.25(A). Specifically, relator listed case
number 19CV-3916, a mandamus action which he indicates he asked the court to withdraw
from the record. However, a review of that case tells a different story.
{¶ 20} Relator filed that complaint in the Franklin County Court of Common Pleas
against the Ohio Adult Parole Board on May 14, 2019. A review of that mandamus filing
demonstrates that it is essentially the exact same complaint as is currently before this court
now. Respondents filed a motion to dismiss on June 14, 2019 on grounds relator's
complaint was actually a request for a writ of habeas corpus. Relator filed a motion for
default judgment asserting respondent had failed to plead or otherwise respond.
No. 19AP-748 7
{¶ 21} In a decision and entry filed September 27, 2019, the trial court found that
relator's motion for default judgment was without merit and denied same. The court also
denied relator's motion for hearing as well as his motion for leave to file an amended
complaint. Thereafter, the court determined that relator had failed to strictly comply with
the mandatory requirements of R.C. 2969.25 as both his affidavit of indigency as well as his
prior actions affidavit were insufficient to meet the requirements of the law. Further, the
court specifically found that, inasmuch as relator's complaint sought his immediate release,
the court agreed with respondent's argument that it was a habeas corpus action and not a
petition for a writ of mandamus.
{¶ 22} As indicated in the findings of fact here, relator asserted that he had asked
the court to withdraw the prior action from the record thereby indicating that he dismissed
the case. However, as above indicated, the trial court dismissed the case. To this extent,
relator's prior actions affidavit is incorrect and, as such, does not meet the strict
requirements of R.C. 2969.25(A).
{¶ 23} Furthermore, relator indicated that he filed a habeas corpus action in "case
no. 2015-Ohio-1740.” However, that citation belongs to the following case: Bank of N.Y.
Mellon v. Dudley, 8th Dist. No. 101659, 2015-Ohio-1740. Relator's failure to properly cite
his prior habeas corpus complaint is likewise a failure to comply with the strict
requirements of the statute.
{¶ 24} This court is authorized to take judicial notice of filings in other courts.
Specifically, the magistrate notes that, on October 3, 2014, relator, pro se, filed a petition
for writ of habeas corpus in the Madison County Court of Common Pleas in Cunningham v.
Tibbalds, case No. CVH 20140230, 2014-Ohio-Misc. Lexis 7973. That court noted that
relator had filed a variety of collateral attacks to his conviction and sentence, all of which
had been denied. The court likewise denied his petition for writ of habeas corpus finding
that he had an adequate alternative remedy at law by way of appeal, and further noted that
the doctrine of res judicata applied because relator had filed successive habeas corpus
petitions and he could have raised this particular issue in his prior habeas corpus actions.
{¶ 25} Relator appealed the common pleas court decision and in Cunningham v.
Tibbals, 12th Dist. No. CA2015-01-003, 2015-Ohio-2826, the Madison County Court of
Appeals affirmed the judgment of the trial court. A discretionary appeal was not allowed
No. 19AP-748 8
by Cunningham v. Tibbals, 144 Ohio St.3d 1443, 2015-Ohio-5468.2 Relator failed to
identify this case as well.
{¶ 26} Pursuant to the above-cited authority and because relator cannot cure this
deficiency now or at a later date, it is the magistrate's decision that this court should dismiss
relator's complaint. Further, pursuant to the above-cited authority, inasmuch as relator did
not prevail and did not establish indigency, this court should order relator to pay the costs
of the proceedings.
/S/ MAGISTRATE
STEPHANIE BISCA
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).
2 This footnote is to indicate that in 2015-Ohio-3698, the Madison County Court of Appeals issued an
amended opinion wherein the court acknowledged that relator correctly argued that a trial court commits
reversible error when it considers documents outside the pleadings in deciding a motion to dismiss on the
basis of res judicata without first converting the motion to a motion for summary judgment and giving the
parties notice of the change. However, because res judicata was an alternative ground upon which the trial
court dismissed his petition, the trial court's error in relying on documents outside the pleadings to dismiss
the petition was harmless.