[Cite as Peterson v. Foley, 2021-Ohio-2455.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF LORAIN ) 

DAMIEN L. PETERSON 

 Petitioner 

 v. 

KEITH FOLEY, WARDEN 

 Respondent 

C.A. No. 20CA011705 

ORIGINAL ACTION IN 

HABEAS CORPUS 

Dated: July 19, 2021 

 

 PER CURIAM. 

{¶1} Petitioner, Damien Peterson, has petitioned this Court for a writ of habeas corpus 

to compel Respondent, Warden Foley, to release him from custody. Warden Foley has moved 

to dismiss and Mr. Peterson has responded. For the following reasons, this Court grants the 

motion to dismiss. 

{¶2} When this Court reviews a motion to dismiss under Civ.R. 12(B)(6), we must 

presume that all of the factual allegations in the petition are true and make all reasonable 

inferences in favor of the nonmoving party. State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d 

489, 490 (1994). A petition can only be dismissed when, having viewed the complaint in this 

way, it appears beyond doubt that the relator can prove no set of facts that would entitle him to 

the relief requested. Goudlock v. Voorhies, 119 Ohio St.3d 389, 2008-Ohio-4787, ¶ 7. With this 

standard in mind, we begin with the facts alleged in the petition. 

{¶3} According to Mr. Peterson’s petition, he was arrested without an active arrest 

warrant. He was held in jail and requested a preliminary hearing. The complaint alleges that an 
C.A. No. 20CA011705 

Page 2 of 5 

 

attorney entered an appearance and requested a continuance of the preliminary hearing, but he 

did not retain and the court did not appoint the attorney. After the time for a preliminary hearing 

had passed, without a preliminary hearing being held, he was indicted by the Cuyahoga County 

Grand Jury. 

{¶4} The complaint alleges that Mr. Peterson was arraigned at common pleas court, 

waived his right to a jury trial, and was convicted following a bench trial. After he was sentenced, 

the Cuyahoga County Public Defender’s Office filed an appeal to the Eighth District Court of 

Appeals. That appeal apparently remains pending. 

{¶5} State habeas corpus relief is available in specific, extraordinary circumstances. 

R.C. Chapter 2725 prescribes the procedure for bringing a habeas corpus action. The petitioner 

must file a petition that contains specific, required, information. If this Court concludes that the 

petition states a facially valid claim, it must allow the writ. R.C. 2725.06. On the other hand, if 

the petition fails to state a claim, this Court should dismiss the petition. Chari v. Vore, 91 Ohio 

St.3d 323, 327 (2001). For this Court to grant the writ, Mr. Peterson must demonstrate that there 

is an unlawful restraint of his liberty or that the judgment of conviction and sentence is void due 

to lack of jurisdiction. Pegan v. Crawmer, 76 Ohio St.3d 97, 99-100 (1996). Mr. Peterson has 

alleged that the judgment of conviction is void. 

{¶6} As noted above, to dismiss a petition under Civ.R. 12(B)(6), it must appear 

beyond doubt from the petition, after all factual allegations are presumed true and all reasonable 

inferences are made in favor of Mr. Peterson, that he can prove no set of facts warranting relief. 

State ex rel. Dehler v. Sutula, Judge, 74 Ohio St.3d 33, 34 (1995). “A writ of habeas corpus is 

warranted in certain extraordinary circumstances ‘where there is an unlawful restraint of a 

person’s liberty and there is no adequate remedy in the ordinary course of law.’” Johnson v. 
C.A. No. 20CA011705 

Page 3 of 5 

 

Timmerman-Cooper, 93 Ohio St.3d 614, 616 (2001), quoting Pegan v. Crawmer, 76 Ohio St.3d 

97, 99 (1996). In the absence of a patent and unambiguous lack of jurisdiction, a trial court with 

general subject matter jurisdiction can determine its jurisdiction and an adequate remedy at law 

can be obtained through an appeal of that decision. State ex rel. M.L. v. O’Malley, 144 Ohio 

St.3d 553, 2015-Ohio-4855, ¶ 9. 

{¶7} Mr. Peterson has alleged three claims in his petition: (1) the municipal court 

lacked subject matter jurisdiction because the complaint was void, (2) the indictment was void 

because the counts were not included in the complaint filed in the municipal court, and (3) the 

municipal court case was improperly bound over to the common pleas court. Warden Foley 

moved to dismiss. He argued that the claims are barred by res judicata, Mr. Peterson has an 

adequate remedy at law, and the issues Mr. Peterson raised are not cognizable in habeas corpus. 

Res Judicata 

{¶8} Warden Foley moved to dismiss pursuant to Civ.R. 12(B) and argued that Mr. 

Peterson’s claims were barred by res judicata. The Ohio Supreme Court has recognized that res 

judicata usually is not a proper basis for dismissal under Civ.R. 12, under which the court 

examines only the pleadings. Jones v. Wainwright, 162 Ohio St.3d 491, 2020-Ohio-4870, ¶ 5. 

Instead, res judicata is more appropriately applied when considering a motion for summary 

judgment Civ.R. 56. Id. In Jones, the Supreme Court noted that it was appropriate to consider 

res judicata because the defense did not depend on documents outside the pleadings and because 

petitioner never disputed that he did not raise the same claim in the successive case. Id.

{¶9} In this case, however, this Court cannot evaluate whether the claims are barred by 

res judicata without resorting to documents or information outside the pleadings. Accordingly, 

this Court will not resolve this case on the basis of res judicata. 
C.A. No. 20CA011705 

Page 4 of 5 

 

Habeas Corpus is not available to Mr. Peterson 

{¶10} The theme underlying all of Mr. Peterson’s claims are that his judgment of 

conviction is void because the trial court lacked jurisdiction. As to his first claim, he alleges that 

the defective criminal complaint deprived the trial court of subject matter jurisdiction. Even if 

we accept all of his allegations as true, those defects would not render the complaint void and 

deprive the trial court of jurisdiction. 

{¶11} The Ohio Supreme Court has considered two similar challenges in State v. Hobbs, 

133 Ohio St.3d 43, 2012-Ohio-3886, and State v. Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795. 

In neither case did the Supreme Court conclude that the allegations resulted in a void complaint 

or deprived the trial court of jurisdiction. Upon review of Mr. Peterson’s allegations, and 

Supreme Court decisions directly on point, we conclude that Mr. Peterson cannot demonstrate 

that the alleged errors resulted in the complaint being void. Because the complaint was not void, 

habeas corpus is not available and any errors could be raised on direct appeal. 

{¶12} Mr. Peterson’s second claim is that because no complaint was ever filed in 

municipal court regarding nine counts of his indictment, all for conduct that occurred in the city 

of Cleveland, not the city where he alleged the void complaint discussed above was filed. He 

alleges that because no complaint was filed, those counts are void. 

{¶13} The argument Mr. Peterson makes has been rejected by the Supreme Court: 

{¶ 5} Any defect resulting from the alleged failure to file a criminal 

complaint is not cognizable in habeas corpus, because [petitioner] was convicted 

and sentenced upon his guilty plea to an indictment, and the trial court had the 

requisite jurisdiction to try, convict, and sentence him upon the robbery offense. 

Boylen v. Bradshaw, 108 Ohio St.3d 181, 2006-Ohio-549, 842 N.E.2d 49, ¶ 5. 

{¶ 6} Moreover, “‘[t]he manner by which an accused is charged with a 

crime is procedural rather than jurisdictional, and after a conviction for crimes 

charged in an indictment, the judgment binds the defendant for the crime for 

which he was convicted.’” State ex rel. Nelson v. Griffin, 103 Ohio St.3d 167, 
C.A. No. 20CA011705 

Page 5 of 5 

 

2004-Ohio-4754, 814 N.E.2d 866, ¶ 6, quoting Orr v. Mack (1998), 83 Ohio St.3d 

429, 430, 700 N.E.2d 590. 

Gotel v. Gansheimer, 116 Ohio St.3d 316, 2007-Ohio-6437, ¶ 5-6. Accordingly, Mr. Peterson 

has not demonstrated that his judgment of conviction is void. Appeal provides an adequate 

remedy to raise any alleged error. 

{¶14} Finally, Mr. Peterson’s third claim is that his case was improperly bound over 

from municipal court to the Cuyahoga County Grand Jury. As discussed above, this allegation 

about a flaw in the process does not render the indictment void. Gotel at ¶ 6. 

Conclusion 

{¶15} Even considering Mr. Peterson’s allegations as true, they are insufficient to 

warrant habeas corpus relief. The motion to dismiss is granted, and this case is dismissed. Costs 

are taxed to Mr. Peterson. The clerk of courts is hereby directed to serve upon all parties not in 

default notice of this judgment and its date of entry upon the journal. See Civ.R. 58. 

 

 LYNNE S. CALLAHAN 

 FOR THE COURT 

HENSAL, J. 

TEODOSIO, J. 

CONCUR. 

APPEARANCES: 

DAMIEN L. PETERSON, Pro Se, Petitioner. 

DAVE YOST, Attorney General, and WILLIAM H. LAMB, Assistant Attorney General, for 

Respondent.