[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 Pe terson, has petitioned this Court for a wr it 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 r easons, 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 onl y 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 petiti on. {¶3} According to Mr. Peterson’s petition, he was arrested without a n active arrest warrant. He was held in jail a nd requested a preliminary heari ng. The complaint a lleges that anC.A. No. 20CA011705 Page 2 of 5 attorney entered an appearance and requested a continuance of t he preliminary hearing, but he

did not retain and the court di d not appoint the attorney. Aft er the time for a preliminary hearing had passed, without a preliminary h earing being held, he was in dicted 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 a pparently remains pending. {¶5} State habeas corpus relief is ava ilable in specific, extraordin ary circumstances. R.C. Chapter 2725 prescribes the procedure for bringing a habea s corpus action. The petitioner must file a petition that contains s pecific, required, informat ion. If this Court concludes that the petition states a facially valid c laim, 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 Cour t to grant the writ, Mr. P eterson 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 judgmen t 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 a re 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 i s an unlawful restraint of a person’s liberty and there is no adequate remedy in the ordinar y 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 jurisdict ion 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 vo id, (2) the indictment was void

because the counts were not incl uded in the complaint filed in the municipal court, and (3) the municipal court case was impr operly bound over to the common pl eas 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 pur suant to Civ.R. 12(B) and argu ed that Mr.

Peterson’s claims were barred by res judicata. The Ohio Suprem e 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 a ppropriately applied when consid ering 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 ou tside the pleadings and because petitioner never disput ed that he did not raise the same claim in the successive case. Id. {¶9} In this case, however, this Court cannot evaluate whether the c laims are barred by res judicata without resorting to documents or information outs ide the pleadings. Accordingly,

this Court will not resolve thi s case on the basis of res judic ata.C.A. No. 20CA011705 Page 4 of 5 Habeas Corpus is not ava ilable to Mr. Peterson {¶10} The theme underlying all of Mr. P eterson’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 su bject matter jurisdiction. Even if we accept all of his allegations as true, those defects would n ot render the complaint void and deprive the trial c ourt 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 allegat ions resulted in a void complaint or deprived the trial court of jurisdiction. Upon review of Mr . Peterson’s a llegations, 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 o n direct appeal. {¶12} Mr. Peterson’s second claim is tha t because no complaint was ev er filed in municipal court regarding nine counts of his indictment, all fo r 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 v oid. {¶13} The argument Mr. Peterson makes has been rejected by the Suprem e Court: {¶ 5} Any defect resulting from the alleged failure to file a c riminal complaint is not cognizable in habeas corpus, because [petition er] was convicted and sentenced upon his guilty plea to an indictment, and the tr ial court had the requisite jurisdiction to try, convict, and sentence him upon t he 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 w ith a crime is procedural rather than jurisdictional, and after a con viction for crimes charged in an indictment, the j udgment 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 cl aim is that his case was improp erly bound over from municipal court to the Cuyahoga County Grand Jury. As dis cussed 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 i nsufficient 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 direc ted to serve upon all parties not in default notice of this judgme nt and its date of entry upon the journal. See Civ.R. 58.

L YNNE 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 Att orney General, for Respondent.