[Cite as State ex rel. Parker v. Black, 2021-Ohio-2739.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE EX REL. DONELL PARKER : JUDGES: 

: 

: Hon. Patricia A. Delaney, A.J. 

Petitioner : Hon. W. Scott Gwin, J. 

: Hon. William B. Hoffman, J. 

-vs- : 

: Case No. 2021 CA 0038 

: 

KENNETH BLACK, WARDEN : 

: 

: 

Respondent : O P I N I O N 

CHARACTER OF PROCEEDING: Writ of Habeas Corpus 

JUDGMENT: Dismissed 

DATE OF JUDGMENT ENTRY: 

APPEARANCES: 

August 9, 2021 

For Petitioner: For Respondent: 

Donell Parker, A330-319 Terri L. Fosnaught 

Richland Correctional Institution Assistant Attorney General 

1001 Olivesburg Road Criminal Justice Section 

Mansfield, Ohio 44905 150 East Gay Street, 16th Floor 

Columbus, Ohio 43215 
Richland County, Case No. 2021 CA 0038 2 

Delaney, J.

{¶1} On May 12, 2021, Petitioner, Donell Parker, filed a Petition for Writ of 

Habeas Corpus. Mr. Parker challenges juvenile transfer proceedings that occurred in the 

Cuyahoga County Juvenile Court. He asserts the juvenile transfer order was never filed 

and docketed to institute proceedings in the Cuyahoga County Common Pleas Court and 

the juvenile transfer order did not comply with former R.C. 2151.26 and Juv.R. 30. Mr. 

Parker also claims certain indictments do not comply with Crim.R. 6(F). Therefore, he 

concludes the Cuyahoga County Common Pleas Court lacked jurisdiction and he should 

be immediately released from prison. The Ohio Attorney General, on behalf of 

Respondent, Warden Kenneth Black, moved to dismiss Mr. Parker’s petition under Civ.R. 

12(B)(6). 

FACTS AND PROCEDURAL HISTORY

{¶2} On February 1, 1996, a juvenile court complaint charged Mr. Parker with 

delinquency in connection with the 1987 shooting death of Robert Letson. On March 21, 

1996, Mr. Parker, then 26 years old, appeared before the Cuyahoga County Juvenile 

Court for proceedings related to the state’s motion to transfer the proceedings to the 

general division. Mr. Parker waived the amenability hearing and mental and physical 

examination and on April 4, 1996, the juvenile court found probable cause and granted 

the state’s motion to transfer. [Memo. in Support of Petition, Exh. 1] 

{¶3} On April 16, 1996, the Cuyahoga County Grand Jury indicted Mr. Parker on 

one count of aggravated murder by prior calculation and design, one count of aggravated 

murder in connection with aggravated robbery, both with felony murder and firearm 
Richland County, Case No. 2021 CA 0038 3 

specifications, and one count of aggravated robbery, with a firearm specification. The 

matter eventually proceeded to a jury trial. The state dismissed the charge of aggravated 

murder by prior calculation and design. The jury found Mr. Parker guilty on the remaining 

two counts. The trial court sentenced Mr. Parker to a term of thirty years to life, for 

aggravated murder, plus three years for the firearm specification, and a consecutive term 

of ten to twenty-five years, for aggravated robbery, plus three years for the firearm 

specification. 

{¶4} The Eighth District Court of Appeals affirmed Mr. Parker’s convictions on 

direct appeal. State v. Parker, 8th Dist. Cuyahoga No. 71474, 1998 WL 166170 (Apr. 9, 

1998). 

ANALYSIS

A. Civ.R. 12(B)(6) standard and habeas corpus elements

{¶5} Respondent, Kenneth Black asks us to dismiss Mr. Parker’s petition on the 

theory of res judicata which he raises in his Motion to Dismiss under Civ.R. 12(B)(6). We 

will address this argument under Civ.R. 12 even though res judicata is usually not a proper 

basis for dismissal under this rule. See Jones v. Wainwright, 162 Ohio St.3d 491, 2020- 

Ohio-4870, 165 N.E.3d 1253, ¶ 5. The Supreme Court recently explained in Jones that it 

would address a res judicata argument under Civ.R. 12(B)(6) because the defense did 

not depend on documents outside the pleadings. Id. 

{¶6} Similarly, here, Mr. Parker attached documents to his Memorandum in 

Support of his Petition for Habeas Corpus that are pertinent to Respondent Black’s res 

judicata argument. Under Civ.R. 10(C), these documents are considered a part of the 
Richland County, Case No. 2021 CA 0038 4 

habeas corpus pleadings for all purposes. Therefore, we will proceed to address this 

matter as a Civ.R. 12(B)(6) dismissal motion. 

{¶7} The purpose of a Civ.R. 12(B)(6) motion is to test the sufficiency of the 

complaint. State ex rel. Boggs v. Springfield Loc. School Dist. Bd. of Edn., 72 Ohio St.3d 

94, 95, 647 N.E.2d 788 (1995). In order for a case to be dismissed for failure to state a 

claim, it must appear beyond doubt that, even assuming all factual allegations in the 

complaint are true, the nonmoving party can prove no set of facts that would entitle that 

party to the relief requested. Keith v. Bobby, 117 Ohio St.3d 470, 2008-Ohio-1443, 884 

N.E.2d 1067, ¶ 10. If a petition does not satisfy the requirements for a properly filed 

petition for writ of habeas corpus or does not present a facially viable claim, it may be 

dismissed on motion by the respondent or sua sponte by the court. Flora v. State, 7th 

Dist. Belmont No. 04 BE 51, 2005-Ohio-2383, ¶ 5. 

{¶8} “To be entitled to a writ of habeas corpus, a petitioner must show that he is 

being unlawfully restrained of his liberty and that he is entitled to immediate release from 

prison or confinement.” State ex rel. Whitt v. Harris, 157 Ohio St.3d 384, 2019-Ohio-4113, 

137 N.E.3d 71, ¶ 6, citing R.C. 2725.01; State ex rel. Cannon v. Mohr, 155 Ohio St.3d 

213, 2018-Ohio-4184, 120 N.E.3d 776, ¶ 10. Habeas corpus is not available when an 

adequate remedy at law exists. Billiter v. Banks, 135 Ohio St.3d 426, 2013-Ohio-1719, 

988 N.E.2d 556, ¶ 8. 

B. Petitioner’s arguments in support of habeas relief

{¶9} First, Mr. Parker asserts the Cuyahoga County Common Pleas Court, 

General Division, never acquired subject matter jurisdiction from the juvenile court 
Richland County, Case No. 2021 CA 0038 5 

because the juvenile transfer order was never filed and docketed to institute proceedings 

in the general division. Attached to Mr. Parker’s Memorandum in Support, as Exhibit 2, is 

a copy of the bindover order that indicates it was filed in the Cuyahoga County Common 

Pleas Court, Juvenile Division, on April 8, 1996. This order states, in part: 

The court, upon due consideration, grants the motion to transfer 

jurisdiction of the child’s case to the general trial division of Cuyahoga 

County Common Pleas Court for criminal prosecution of the case. It is, 

therefore, ordered, adjudged, and decreed that pursuant to Ohio Juvenile 

Rule 30 and Ohio Revised Code Section 2151.26, the matter herein is 

transfered (sic) to the general trial division of the Cuyahoga County 

Common Pleas Court for further proceedings pursuant to law.

{¶10} Mr. Parker claims the docket for the general division does not contain the 

bindover order. He is correct because the bindover order was filed in the juvenile division, 

not the general division. The bindover order indicates such in its caption. Mr. Parker also 

maintains his case was instituted and docketed at his arraignment on April 19, 1996, 

seventeen days after the juvenile case was allegedly transferred. Again, based on the 

bindover order, filed on April 8, 1996, in the juvenile division, his case was instituted in 

the general division before his first appearance on April 19, 1996. Because the bindover 

order was properly filed and docketed the general division acquired jurisdiction from the 

juvenile division and therefore, had jurisdiction to address the charges against Mr. Parker. 

{¶11} Second, Mr. Parker contends the bindover order did not comply with former 

R.C. 2151.26 and Juv.R. 30. He cites State v. Newton, 6th Dist. Fulton No. C.A. No. F82-17, 1983 WL 6836 (June 10, 1983), for the proposition that a juvenile court must state 
Richland County, Case No. 2021 CA 0038 6 

with reasonable specificity the factual basis underlying its order to transfer a juvenile to 

the common pleas court for prosecution as an adult. Id. at *4. 

{¶12} The statute and juvenile rule at issue require the juvenile court to consider 

certain factors in making a bindover determination. Mr. Parker asserts the juvenile court 

failed to comply with the statute and rule for the following reasons: (1) a hearing never 

occurred on April 2, 1996; (2) the March 21, 1996 hearing transcript contains no mention 

of waiver of physical and mental examination and amenability; (3) the March 21, 1996 

hearing contains no appointment of counsel; and (4) he did not receive appointed counsel 

until April 19, 1996, following his transfer to the general division. 

{¶13} The exhibits attached to Mr. Parker’s Memorandum in Support do not bear 

out his arguments. For example, Exhibit 2, the bindover order specifically indicates the 

matter was before the juvenile court for a hearing on April 2, 1996. The lack of a transcript 

does not prove that a hearing did not occur. We also note the bindover order states: 

“Subject, through counsel, waives amendability (sic) phase of this hearing and a mental 

and physical examination of said subject made by a duly qualified person(s).” Thus, Mr. 

Parker not only appears to have had counsel at the bindover hearing, but he also waived, 

through counsel, physical and mental examinations and the amenability phase of the 

hearing. 

{¶14} Third, Mr. Parker contends Crim.R. 6(F) provides a strict procedure for filing 

and returning an indictment and Counts Two and Three were never “returned.” The rule 

requires the indictment be returned by the foreperson or deputy foreperson “to a judge of 

the court of common pleas and filed with the clerk who shall endorse thereon the date of 

filing and enter each case upon the appearance and trial dockets.” 
Richland County, Case No. 2021 CA 0038 7 

{¶15} Exhibit 6, attached to Mr. Parker’s Memorandum in Support, contains three 

True Bill Indictments filed with the Clerk of Courts on April 16, 1996. The indictments were 

Count One for aggravated murder, R.C. 2903.01; Count Two for aggravated murder, R.C. 

2903.01; and Count Three for aggravated robbery, R.C. 2911.01. A time stamp does not 

appear on Counts Two and Three; however, it appears the indictments were filed as one 

document, with Count One being the first page containing a time stamp from the Clerk of 

Courts. Further, the printout of the Common Pleas Court’s docket, attached as Exhibit 3 

to Mr. Parker’s Memorandum in Support, indicates the three pending charges on page 1. 

{¶16} Our review of the exhibits submitted by Mr. Parker establishes his 

arguments lack merit and therefore, he is not entitled to habeas relief. Further, all of the 

arguments raised by Mr. Parker in his Petition for Habeas Corpus concern arguments he 

could have pursued in his direct appeal. As long as a petitioner had adequate legal 

remedies for the issues of which he complains by either direct appeal or post-conviction 

relief, the issues may not be addressed in habeas corpus. Cornell v. Schotten, 69 Ohio 

St.3d 466, 467, 633 N.E.2d 1111 (1994). Rather, res judicata applies barring a convicted 

defendant from litigating, in a collateral proceeding, any claim that either was raised or 

could have been raised at his trial or in his direct appeal. State v. Perry, 10 Ohio St.2d 

175, 180, 226 N.E.2d 104 (1967); State v. Szefcyk, 77 Ohio St.3d 93, 96, 1996-Ohio-337, 

671 N.E.2d 233. 

{¶17} The claims Mr. Parker raises here are claims that could have been 

addressed in his direct appeal. See Moore v. Wainwright, 160 Ohio St.3d 103, 2020-Ohio846, 154 N.E.3d 22, ¶ 7 (Claims challenging the validity of the bindover proceedings could 

be raised on direct review.); State ex rel. Arroyo v. Sloan, 142 Ohio St.3d 541, 2015-Ohio- 
Richland County, Case No. 2021 CA 0038 8 

2081, 33 N.E.3d 56, ¶ 5, quoting McGee v. Sheldon, 132 Ohio St.3d 89, 2012-Ohio-2217, 

969 N.E.2d 262, ¶ 1 (“Habeas corpus is not available to challenge the validity of a 

charging instrument.”). 

CONCLUSION

For the foregoing reasons, we grant Respondent Black’s Motion to Dismiss. 

MOTION GRANTED. 

CAUSE DISMISSED. 

COSTS TO PETITIONER. 

IT IS SO ORDERED. 

By: Delaney, J., 

Gwin, J. and 

Hoffman, J., concur.