[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Orr 

v. Schweitzer, Slip Opinion No. 2021-Ohio-1786.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2021-OHIO-1786

ORR, APPELLANT, v. SCHWEITZER, WARDEN, APPELLEE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Orr v. Schweitzer, Slip Opinion No. 2021-Ohio-1786.] 

Habeas corpus—Nonjurisdictional errors, including claims of actual innocence, 

insufficiency of the evidence, and prosecutorial misconduct, are not 

cognizable in habeas corpus—Judicial notice improper when facts are not 

in dispute—Summary judgment inapplicable to appeal proceedings—

Judgment dismissing petition for writ affirmed—Motions denied. 

(No. 2020-1424—Submitted March 30, 2021—Decided May 27, 2021.) 

APPEAL from the Court of Appeals for Madison County, No. CA2020-08-014. 

__________________ 

Per Curiam. 

{¶ 1} Appellant, Darllel Orr, an inmate at the Madison Correctional 

Institution, appeals the Twelfth District Court of Appeals’ dismissal of his habeas 

corpus petition. Orr has also filed several motions seeking various orders on appeal. 

We affirm the court of appeals’ judgment and deny all of Orr’s motions. 
SUPREME COURT OF OHIO

2

I. Background 

{¶ 2} Orr was convicted in 2013 of aggravated murder with firearm 

specifications and other crimes and sentenced to life in prison without the 

possibility of parole. Orr’s convictions were affirmed on appeal. State v. Orr, 8th 

Dist. Cuyahoga No. 1008441, 2014-Ohio-4680. 

{¶ 3} In August 2020, Orr filed a petition for a writ of habeas corpus in the 

court of appeals naming appellee, Warden Thomas Schweitzer, as the respondent. 

Orr alleged that his incarceration is the product of numerous constitutional-dueprocess violations committed in the trial-court proceedings that resulted in his 

conviction. Schweitzer filed a motion to dismiss Orr’s petition under Civ.R. 

12(B)(6). The court of appeals granted the motion and dismissed the action. Orr 

timely appealed to this court as of right. He has also filed a motion for an 

“emergency deposition hearing order” for the purpose of obtaining sworn testimony 

from a purported exculpatory witness, a motion for funds to hire an investigator to 

locate the witness, two motions for judicial notice of facts supporting his 

constitutional claims, and a motion for summary judgment. 

II. Analysis 

A. Dismissal of Orr’s Petition 

{¶ 4} This court reviews de novo a lower court’s dismissal of a habeas 

corpus petition under Civ.R. 12(B)(6). State ex rel. Norris v. Wainwright, 158 Ohio 

St.3d 20, 2019-Ohio-4138, 139 N.E.3d 867, ¶ 5. Dismissal is appropriate if it 

appears beyond doubt from the petition, after presuming all factual allegations to 

be true and making reasonable inferences in the petitioner’s favor, that the 

petitioner can prove no set of facts entitling him to extraordinary relief in habeas 

corpus. Keith v. Bobby, 117 Ohio St.3d 470, 2008-Ohio-1443, 884 N.E.2d 1067, 

¶ 10. 

{¶ 5} The court of appeals properly dismissed Orr’s petition. Though Orr 

complains of constitutional violations underlying his convictions, none of his 
January Term, 2021 

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arguments implicate the jurisdiction of the trial court. Accordingly, Orr did not 

state a valid claim for habeas corpus, because he had adequate remedies at law, 

namely direct appeal or a petition for postconviction relief, to address the 

nonjurisdictional errors of which he complains. Kneuss v. Sloan, 146 Ohio St.3d 

248, 2016-Ohio-3310, 54 N.E.3d 1242, ¶ 6. 

{¶ 6} In his first proposition of law, Orr argues that the court of appeals 

erred in dismissing his petition without an evidentiary hearing. Orr contends that 

the court of appeals deprived him of his right to demonstrate an actual-innocence 

defense, which he claims is supported by newly discovered evidence. This 

argument does not provide a basis for reversal however, because a claim of actual 

innocence is not a cognizable basis for habeas relief under Ohio law, and Orr “has 

or had adequate legal remedies such as a petition for postconviction relief * * * to 

raise his contentions concerning * * * his innocence.” Shie v. Leonard, 84 Ohio 

St.3d 160, 161, 702 N.E.2d 419 (1998). 

{¶ 7} In his second proposition of law, Orr argues that the court of appeals 

erred in dismissing his habeas petition without making “a factual identification 

inquiry” into his guilt. Orr argues that the evidence implicating him was unreliable 

and insufficient to support his conviction, thereby depriving him of due process of 

law. Orr’s argument contests the sufficiency of the evidence at trial, which is not a 

cognizable basis for relief in habeas corpus. Lynch v. Wilson, 114 Ohio St.3d 118, 

2007-Ohio-3254, 868 N.E.2d 982, ¶ 5. 

{¶ 8} Finally, in his third proposition of law, Orr contends that the

prosecution violated his constitutional right to a fair trial by fabricating evidence, 

depriving him of the opportunity to cross-examine an unidentified witness referred 

to in police reports, and making improper statements during closing argument. But 

claims of prosecutorial misconduct are not cognizable in habeas corpus. Keith, 117 

Ohio St.3d 470, 2008-Ohio-1443, 884 N.E.2d 1067, at ¶ 15. 

 
SUPREME COURT OF OHIO

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B. Orr’s Motions 

{¶ 9} Orr has filed motions for (1) an order allowing an “emergency 

deposition” of a witness whose testimony, Orr contends, supports his claim of 

actual innocence, (2) “emergency funds” for the purpose of hiring an investigator 

to locate the witness, (3) judicial notice of facts supporting his constitutional claims, 

and (4) “summary judgment relief in the interest of justice.” 

{¶ 10} Orr’s motions for an emergency deposition and for funds to locate 

the witness to be deposed seek to add evidence to the record to support his claim of 

actual innocence. We deny these motions. “A reviewing court generally may not 

add matter to the record before it and then decide the appeal on the basis of the new 

matter.” State ex rel. Harris v. Turner, 160 Ohio St.3d 506, 2020-Ohio-2901, 159 

N.E.3d 1121, ¶ 16. Moreover, as noted above, claims of actual innocence are not 

cognizable in habeas corpus. Therefore, the evidence Orr seeks to procure is 

immaterial to this proceeding. 

{¶ 11} We also deny Orr’s two motions for judicial notice. Orr asks the 

court to take judicial notice of “a corrupt pattern of omission tactics that has been 

criminally utilized” against him to obtain a conviction. In a second motion for 

judicial notice, Orr offers additional argument in support of his claims of actual 

innocence and constitutional violations at trial. Orr asks this court to take judicial 

notice of disputed facts and legal conclusions, which is improper. See Harris at 

¶ 17. Judicial notice applies only to facts that are not subject to reasonable dispute. 

Evid.R. 201(B). 

{¶ 12} Finally, Orr’s motion for summary judgment is also improper. 

“Summary judgment is a procedural device to terminate litigation and to avoid a 

formal trial where there is nothing to try.” Murphy v. Reynoldsburg, 65 Ohio St.3d 

356, 358, 604 N.E.2d 138 (1992). Summary judgment is not applicable to 

proceedings on appeal. 

 
January Term, 2021 

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III. Conclusion 

{¶ 13} For the foregoing reasons, we affirm the judgment of the court of 

appeals and deny all of Orr’s motions. 

Judgment affirmed. 

O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART, 

and BRUNNER, JJ., concur. 

_________________ 

 Darllel Orr, pro se. 

 Dave Yost, Attorney General, and Stephanie L. Watson, Assistant Attorney 

General, for appellee. 

_________________