State ex rel. Peterson v. Miday

2026 Ohio 191

• Court: Ohio Court of Appeals
• Decided: January 16, 2026
• Docket: 115723
• Status: Published

Opinion

[Cite as State ex rel. Peterson v. Miday, 2026-Ohio-191.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE EX REL. DAMIEN L. PETERSON, : Relator, : No. 115723 v. : JUDGE SHERRIE M. MIDAY, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: COMPLAINT DISMISSED IN PART AND GRANTED IN PART DATED: January 16, 2026

Writ of Procedendo Order No. 591284 Motion No. 590805

Appearances:

Damien L. Peterson, pro se.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Craig A. McClelland, Assistant Prosecuting Attorney, for respondent.

MARY J. BOYLE, J.:

Damien L. Peterson (“Peterson”) has filed a complaint for a writ of

procedendo. Peterson seeks an order from this court that requires Judge Sherrie M. Miday (“Judge Miday”) to render a ruling with regard to a second and successive

petition for postconviction relief, filed in State v. Peterson, Cuyahoga C.P. No. CR-

19-639520-A, on December 27, 2024. Peterson also seeks an order that requires

Judge Miday to comply with Civ.R. 58, which requires the trial court to endorse on

any civil judgment a direction to the clerk to serve upon all parties notice of the

judgment and its date of entry upon the journal. Judge Miday has filed a motion to

dismiss that is granted in part and denied in part.

I. Complaint for Procedendo is Moot

Attached to the motion to dismiss is a copy of a judgment entry that

demonstrates a ruling that denied Peterson’s second and successive petition for

postconviction relief and was journalized on December 18, 2025. Relief is

unwarranted because the request for a writ of procedendo is moot. Procedendo will

not compel the performance of a duty that has already been performed. State ex rel.

Ames v. Pokorny, 2021-Ohio-2070, ¶ 7; Thompson v. Donnelly, 2018-Ohio-4073, ¶

5; State ex rel. S.Y.C. v. Floyd, 2020-Ohio-5189, ¶ 9 (8th Dist.). See also State ex

rel. Williams v. Croce, 2018-Ohio-2703, ¶ 7; State ex rel. Fontanella v. Kontos,

2008-Ohio-1431, ¶ 6.

II. Civ.R. 58(B) Notice to Clerk of Courts

Because an action for postconviction relief constitutes a civil

proceeding, the notice requirement of Civ.R. 58(B) is applicable to any judgment

rendered with regard to a motion for postconviction relief. State v. Nichols, 11 Ohio

St.3d 40, 43 (1984). This court, in State v. Tucker, 2011-Ohio-4092, ¶ 9 (8th Dist.), specifically addressed the issue of Civ.R. 58(B) and the requirement that the trial

court direct the clerk of courts to serve notice upon the parties of a civil judgment.

A review of the docket in Cuyahoga C.P. No. CR-19-639520-A fails to

demonstrate that Judge Miday has complied with Civ.R. 58(B) when issuing civil

judgments that denied or dealt with Peterson’s second and successive petition for

postconviction relief.1 Thus, Judge Miday must comply with Civ.R. 58(B) and

reissue any judgments, that denied Peterson’s second and successive petition

postconviction relief or dealt with his second and successive petition for

postconviction relief, to contain language that directs the clerk of courts to serve

upon all parties notice of the judgment and its date of entry upon the journal.

Accordingly, we grant in part and deny in part Judge Miday’s motion

to dismiss. Costs waived. The court directs the clerk of courts to serve all parties

with notice of this judgment and the date of entry upon the journal as required by

Civ.R. 58(B).

Complaint dismissed in part and granted in part.

_______________________________ MARY J. BOYLE, JUDGE

LISA B. FORBES, P.J., and EILEEN T. GALLAGHER, J., CONCUR

1 An appellate court is permitted to take judicial notice of publicly accessible online

court dockets. Fipps v. Day, 2022-Ohio-3434, ¶ 2 (8th Dist.)