[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as Orr v. Schweitzer , Slip Opinion No. 2021-Ohio-1786.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 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.

S LIP O PINION N O

. 2021-O HIO -1786

O RR , A PPELLANT , v . S CHWEITZER , W ARDEN , A PPELLEE

. [Until this opinion appears in t he Ohio Official Reports advanc e 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 wr it affirmed—Motions denied. (No. 2020-1424—Submitted March 30, 2021—Decided May 27, 2021.)

A PPEAL 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’ dis missal of his habeas corpus petition. Orr has also f iled several motions seeking va rious orders on appeal. We affirm the court of appeals’ judgment and deny all of Orr’s motions.S UPREME C OURT OF O HIO

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 appe al. State v. Orr , 8th Dist. Cuyahoga No. 1008441, 2014-Ohio-4680. {¶ 3} In August 2020, Orr filed a petiti on for a writ of habeas corpu s in the court of appeals naming appellee, Warden Thomas Schweitzer, as the respondent. Orr alleged that his incarcera tion is the product of numerous c onstitutional-dueprocess violations committed in the trial-court proceedings tha t resulted in his

conviction. Schweitzer filed a motion to dismiss Orr’s petitio n under Civ.R. 12(B)(6). The court of appeals granted the motion and dismisse d the action. Orr timely appealed to this court as of right. He has also filed a motion for an “emergency deposition hearing orde r” for the purpose of obtaini ng sworn testimony from a purported exculpatory witness, a motion for funds to hir e an investigator to locate the witness, two motions f or judicial notice of facts su pporting his constitutional claims, and a mo tion for summary judgment. II. Analysis A. Dismissal of Orr’s Petition {¶ 4} This court reviews de novo a lower court’s dismissal of a habea s 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 ap propriate if it appears beyond doubt from the petition, after presuming all fac tual allegations to be true and making reasonable inferences in the petitioner’s fa vor, that the petitioner can prove no set of facts entitling him to extraordi nary 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 viol ations underlying his convictio ns, none of hisJanuary Term, 2021

3 arguments implicate the jurisdiction of the trial court. Accor dingly, 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, t o address the nonjurisdictional errors o f 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 a ppeals erred in dismissing his petition without an evidentiary hearing . Orr contends that the court of appeals deprived him of his right to demonstrate a n actual-innocence defense, which he claims is supported by newly discovered evide nce. This argument does not provide a basis for reversal however, because a claim of actual innocence is not a cognizable ba sis for habeas relief under Ohi o law, and Orr “has or had adequate legal remedies such as a petition for postconvi ction 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 p etition without making “a factu al identification inquiry” into his guilt. Orr argues that the evidence implicat ing him was unreliable and insufficient to support his c onviction, thereby depriving h im of due process of law. Orr’s argument contests the sufficiency of the evidence a t 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 b y fabricating evidence, depriving him of the opportunity t o cross-examine an unidentifi ed witness referred to in police reports, and making improper statements during clo sing argument. But claims of prosecutorial misconduc t are not cognizable in habeas corpus. Keith , 117 Ohio St.3d 470, 2008-Ohio-1443, 884 N.E.2d 1067, at ¶ 15.S UPREME C OURT OF O HIO

4 B. Orr’s Motions {¶ 9} Orr has filed motions for (1) an order allowing an “emergency deposition” of a witness whose te stimony, Orr contends, support s his claim of actual innocence, (2) “emergency funds” for the purpose of hiri ng an investigator to locate the witness, (3) judicial notice of facts supporting his constitutional claims, and (4) “summary judgme nt relief in the int erest of justice.” {¶ 10} Orr’s motions for an emergency deposition and for funds to loca te 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 g enerally may not add matter to the record before it and then decide the appeal o n 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 t he 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 add itional argument in support of h is claims of actual

innocence and constitutional violations at trial. Orr asks thi s court to take judicial notice of disputed facts and legal conclusions, which is improp er. See Harris at ¶ 17. Judicial notice applies onl y to facts that are not subje ct 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 litigatio n 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 appli cable to proceedings on appeal.January Term, 2021

5 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’C ONNOR , C.J., and K ENNEDY , F ISCHER , D E W INE , D ONNELLY , S TEWART , and B RUNNER , JJ., concur.

_________________ Darllel Orr, pro se. Dave Yost, Attorney General, a nd Stephanie L. Watson, Assistan t Attorney General, for appellee.

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