[Cite as Lloyd v. Robinson, 2014-Ohio-4977.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
DAMON SHAWN LLOYD, : Case No. 14CA3452
Petitioner-Appellant, :
v. : DECISION AND JUDGMENT ENTRY NORM ROBINSON, :
Respondent-Appellee. : RELEASED: 11/4/2014
APPEARANCES:
Damon Shawn Lloyd, Chillicothe, Ohio, pro se appellant.
Michael DeWine, Attorney General, Columbus, Ohio, and William H. Lamb, Assistant Attorney General, Cincinnati, Ohio, for appellee.
Harsha, J. {¶1} After being convicted of murder with a firearm specification and sentenced
to prison, Damon Shawn Lloyd unsuccessfully appealed to the 12th District Court of
Appeals. Lloyd subsequently filed a petition for a writ of habeas corpus to compel the
warden of the Chillicothe Correctional Institution to release him from prison. The trial
court granted the warden’s Civ.R. 12(B)(6) motion to dismiss the petition for failure to
state a claim upon which relief can be granted.
{¶2} Lloyd asserts in his first assignment of error that the trial court erred in
dismissing his habeas corpus petition for lack of commitment papers. We reject Lloyd’s
contention because he failed to attach the required copies of his commitment order as
required by R.C. 2725.04(D); this rendered his petition fatally defective and subject to
dismissal. Ross App. No. 14CA3452 2
{¶3} In his second assignment of error, Lloyd contends that the trial court erred
in determining that his habeas corpus claim was barred by res judicata. Lloyd is
incorrect. Because he could have raised it in his criminal case and direct appeal, res
judicata barred Lloyd from raising his substantive claim that his indictment was defective
due to irregularities in the grand jury process.
{¶4} In his third assignment of error Lloyd claims that the trial court erred in
determining that his challenge to the indictment based on flaws in the grand jury
proceeding was not cognizable in habeas corpus. Lloyd’s claim is meritless because
habeas corpus is not available to challenge the validity of an indictment.
{¶5} Therefore, we overrule Lloyd’s assignments of error and affirm the
judgment of the trial court dismissing his petition for extraordinary relief in habeas
corpus.
I. FACTS
{¶6} In November 2006, Lloyd shot and killed David Richardson at Lloyd’s
residence in Warren County, Ohio. A grand jury indicted Lloyd of one count of murder
with a firearm specification. Following a bench trial the Warren County Court of
Common Pleas rejected Lloyd’s claim of self-defense, convicted him of the charges,
and sentenced him to an aggregate prison term of 18 years to life. In an appeal in
which Lloyd was represented by counsel, the Twelfth District Court of Appeals affirmed.
State v. Lloyd, 12th Dist. Warren Nos. CA2007-04-052 and CA2007-04-053, 2008-Ohio-
3383. The Supreme Court of Ohio did not allow his discretionary appeal from the court
of appeals’ judgment. State v. Lloyd, 120 Ohio St.3d 1454, 2008-Ohio-6813, 898 Ross App. No. 14CA3452 3
N.E.2d 968. Lloyd did not contend in either his criminal case or his direct appeal that
his indictment was defective because of irregularities in the grand jury proceeding.
{¶7} Over five years later in February 2014, while he was an inmate at
Chillicothe Correctional Institution, Lloyd filed a petition in the Ross County Court of
Common Pleas for a writ of habeas corpus to compel Warden Robinson to release him
from custody. Lloyd claimed that his conviction and sentence were illegal because he
was indicted based on the unlawful testimony of his wife during the grand jury
proceeding. Lloyd contended that his wife was coerced by the state into testifying
without being advised of her right to invoke her spousal privilege not to testify against
him. Lloyd did not attach a copy of his commitment papers, i.e., sentencing entry, to his
petition. The warden filed a Civ.R. 12(B)(6) motion to dismiss the petition for failure to
state a claim upon which relief can be granted, and Lloyd filed a memorandum in
opposition.
{¶8} The trial court granted the warden’s motion and dismissed the petition for
failure to state a claim upon which relief can be granted. The trial court determined that
(1) Lloyd did not comply with R.C. 2725.04(D) by attaching his commitment papers to
his petition, (2) res judicata barred Lloyd’s claims, and (3) habeas corpus was not
available to remedy his claim attacking the validity of his indictment. This appeal
followed.
II. ASSIGNMENTS OF ERROR
{¶9} Lloyd assigns the following errors for our review:
1. The habeas court erred in dismissing appellant’s petition for writ of habeas corpus. Ross App. No. 14CA3452 4
2. The habeas court erred in determining appellant’s claims for relief were barred by res judicata.
3. The habeas court erred in determining that appellant’s claims for relief were barred from being presented; due to prosecutorial misconduct and violations of spousal privilege constituting plain errors in the grand jury and indictment process.
III. STANDARD OF REVIEW
{¶10} “A motion to dismiss for failure to state a claim upon which relief can be
granted tests the sufficiency of the complaint.” Volbers-Klarich v. Middletown Mgt., Inc.,
125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434, ¶ 11. “In order for a trial court to
dismiss a complaint under Civ.R. 12(B)(6) for failure to state a claim upon which relief
can be granted, it must appear beyond doubt that the plaintiff can prove no set of facts
in support of the claim that would entitle the plaintiff to the relief sought.” Ohio Bur. Of
Workers’ Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶
12; Rose v. Cochran, 4th Dist. Ross No. 11CA3243, 2012-Ohio-1729, ¶ 10. This same
standard applies in cases involving claims for extraordinary relief, including habeas
corpus. Boles v. Knab, 130 Ohio St.3d 339, 2011-Ohio-5049, 958 N.E.2d 554, ¶ 2
(“Dismissal under Civ.R. 12(B)(6) for failure to state a claim was warranted because
after all factual allegations of Boles’s petition were presumed to be true and all
reasonable inferences therefrom were made in his favor, it appeared beyond doubt that
he was not entitled to the requested extraordinary relief in habeas corpus”).
IV. LAW AND ANALYSIS
{¶11} In his first assignment of error Lloyd asserts that the trial court erred in
dismissing his petition based on his failure to attach his commitment papers to the
petition. The trial court correctly found that Lloyd failed to attach a copy of his Ross App. No. 14CA3452 5
commitment papers to his petition and thus failed to comply with R.C. 2725.04(D). “This
omission renders the petition fatally defective and subject to dismissal.” Fugett v.
Turner, 140 Ohio St.3d 1, 2014-Ohio-1934, 14 N.E.3d 984, ¶ 2. And although Lloyd
later attached his sentencing entry to his memorandum in opposition to the warden’s
motion to dismiss, this did not cure the fatal defect. See Day v. Wilson, 116 Ohio St.3d
566, 2008-Ohio-82, 880 N.E.2d 919, ¶ 4; Boyd v. Money, 82 Ohio St.3d 388, 389, 696
N.E.2d 568 (1998).
{¶12} Lloyd contends that he gave all the applicable documents, including his
sentencing entry, to prison officials for mailing, but for some unknown reason, they did
not reach the trial court for filing.
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[Cite as Lloyd v. Robinson, 2014-Ohio-4977.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
DAMON SHAWN LLOYD, : Case No. 14CA3452
Petitioner-Appellant, :
v. : DECISION AND JUDGMENT ENTRY NORM ROBINSON, :
Respondent-Appellee. : RELEASED: 11/4/2014
APPEARANCES:
Damon Shawn Lloyd, Chillicothe, Ohio, pro se appellant.
Michael DeWine, Attorney General, Columbus, Ohio, and William H. Lamb, Assistant Attorney General, Cincinnati, Ohio, for appellee.
Harsha, J. {¶1} After being convicted of murder with a firearm specification and sentenced
to prison, Damon Shawn Lloyd unsuccessfully appealed to the 12th District Court of
Appeals. Lloyd subsequently filed a petition for a writ of habeas corpus to compel the
warden of the Chillicothe Correctional Institution to release him from prison. The trial
court granted the warden’s Civ.R. 12(B)(6) motion to dismiss the petition for failure to
state a claim upon which relief can be granted.
{¶2} Lloyd asserts in his first assignment of error that the trial court erred in
dismissing his habeas corpus petition for lack of commitment papers. We reject Lloyd’s
contention because he failed to attach the required copies of his commitment order as
required by R.C. 2725.04(D); this rendered his petition fatally defective and subject to
dismissal. Ross App. No. 14CA3452 2
{¶3} In his second assignment of error, Lloyd contends that the trial court erred
in determining that his habeas corpus claim was barred by res judicata. Lloyd is
incorrect. Because he could have raised it in his criminal case and direct appeal, res
judicata barred Lloyd from raising his substantive claim that his indictment was defective
due to irregularities in the grand jury process.
{¶4} In his third assignment of error Lloyd claims that the trial court erred in
determining that his challenge to the indictment based on flaws in the grand jury
proceeding was not cognizable in habeas corpus. Lloyd’s claim is meritless because
habeas corpus is not available to challenge the validity of an indictment.
{¶5} Therefore, we overrule Lloyd’s assignments of error and affirm the
judgment of the trial court dismissing his petition for extraordinary relief in habeas
corpus.
I. FACTS
{¶6} In November 2006, Lloyd shot and killed David Richardson at Lloyd’s
residence in Warren County, Ohio. A grand jury indicted Lloyd of one count of murder
with a firearm specification. Following a bench trial the Warren County Court of
Common Pleas rejected Lloyd’s claim of self-defense, convicted him of the charges,
and sentenced him to an aggregate prison term of 18 years to life. In an appeal in
which Lloyd was represented by counsel, the Twelfth District Court of Appeals affirmed.
State v. Lloyd, 12th Dist. Warren Nos. CA2007-04-052 and CA2007-04-053, 2008-Ohio-
3383. The Supreme Court of Ohio did not allow his discretionary appeal from the court
of appeals’ judgment. State v. Lloyd, 120 Ohio St.3d 1454, 2008-Ohio-6813, 898 Ross App. No. 14CA3452 3
N.E.2d 968. Lloyd did not contend in either his criminal case or his direct appeal that
his indictment was defective because of irregularities in the grand jury proceeding.
{¶7} Over five years later in February 2014, while he was an inmate at
Chillicothe Correctional Institution, Lloyd filed a petition in the Ross County Court of
Common Pleas for a writ of habeas corpus to compel Warden Robinson to release him
from custody. Lloyd claimed that his conviction and sentence were illegal because he
was indicted based on the unlawful testimony of his wife during the grand jury
proceeding. Lloyd contended that his wife was coerced by the state into testifying
without being advised of her right to invoke her spousal privilege not to testify against
him. Lloyd did not attach a copy of his commitment papers, i.e., sentencing entry, to his
petition. The warden filed a Civ.R. 12(B)(6) motion to dismiss the petition for failure to
state a claim upon which relief can be granted, and Lloyd filed a memorandum in
opposition.
{¶8} The trial court granted the warden’s motion and dismissed the petition for
failure to state a claim upon which relief can be granted. The trial court determined that
(1) Lloyd did not comply with R.C. 2725.04(D) by attaching his commitment papers to
his petition, (2) res judicata barred Lloyd’s claims, and (3) habeas corpus was not
available to remedy his claim attacking the validity of his indictment. This appeal
followed.
II. ASSIGNMENTS OF ERROR
{¶9} Lloyd assigns the following errors for our review:
1. The habeas court erred in dismissing appellant’s petition for writ of habeas corpus. Ross App. No. 14CA3452 4
2. The habeas court erred in determining appellant’s claims for relief were barred by res judicata.
3. The habeas court erred in determining that appellant’s claims for relief were barred from being presented; due to prosecutorial misconduct and violations of spousal privilege constituting plain errors in the grand jury and indictment process.
III. STANDARD OF REVIEW
{¶10} “A motion to dismiss for failure to state a claim upon which relief can be
granted tests the sufficiency of the complaint.” Volbers-Klarich v. Middletown Mgt., Inc.,
125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434, ¶ 11. “In order for a trial court to
dismiss a complaint under Civ.R. 12(B)(6) for failure to state a claim upon which relief
can be granted, it must appear beyond doubt that the plaintiff can prove no set of facts
in support of the claim that would entitle the plaintiff to the relief sought.” Ohio Bur. Of
Workers’ Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶
12; Rose v. Cochran, 4th Dist. Ross No. 11CA3243, 2012-Ohio-1729, ¶ 10. This same
standard applies in cases involving claims for extraordinary relief, including habeas
corpus. Boles v. Knab, 130 Ohio St.3d 339, 2011-Ohio-5049, 958 N.E.2d 554, ¶ 2
(“Dismissal under Civ.R. 12(B)(6) for failure to state a claim was warranted because
after all factual allegations of Boles’s petition were presumed to be true and all
reasonable inferences therefrom were made in his favor, it appeared beyond doubt that
he was not entitled to the requested extraordinary relief in habeas corpus”).
IV. LAW AND ANALYSIS
{¶11} In his first assignment of error Lloyd asserts that the trial court erred in
dismissing his petition based on his failure to attach his commitment papers to the
petition. The trial court correctly found that Lloyd failed to attach a copy of his Ross App. No. 14CA3452 5
commitment papers to his petition and thus failed to comply with R.C. 2725.04(D). “This
omission renders the petition fatally defective and subject to dismissal.” Fugett v.
Turner, 140 Ohio St.3d 1, 2014-Ohio-1934, 14 N.E.3d 984, ¶ 2. And although Lloyd
later attached his sentencing entry to his memorandum in opposition to the warden’s
motion to dismiss, this did not cure the fatal defect. See Day v. Wilson, 116 Ohio St.3d
566, 2008-Ohio-82, 880 N.E.2d 919, ¶ 4; Boyd v. Money, 82 Ohio St.3d 388, 389, 696
N.E.2d 568 (1998).
{¶12} Lloyd contends that he gave all the applicable documents, including his
sentencing entry, to prison officials for mailing, but for some unknown reason, they did
not reach the trial court for filing. However, the record does not support this contention.
And we cannot add matter to the record before us that was not part of the trial court’s
proceeding and then decide this appeal on the basis of the new matter. See North v.
Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d 386, ¶ 7 (applying this
principle in an appeal from the dismissal of a habeas corpus petition). We overrule
Lloyd’s first assignment of error.
{¶13} In his second assignment of error Lloyd asserts that the trial court erred in
determining that the claims he raised in his habeas corpus petition were barred by res
judicata. Res judicata barred Lloyd from raising those claims that he could have raised
in his criminal case and direct appeal. See, e.g., Smith v. Voorhies, 119 Ohio St.3d
345, 2008-Ohio-4479, 894 N.E.2d 44, ¶ 11; McClellan v. Mack, 129 Ohio St.3d 504,
2011-Ohio-4216, 954 N.E.2d 123, ¶ 2. “Under the doctrine of res judicata, a final
judgment of conviction bars a convicted defendant who was represented by counsel
from raising and litigating in any proceeding except an appeal from that judgment, any Ross App. No. 14CA3452 6
defense or any claimed lack of due process that was raised or could have been raised
by the defendant at the trial, which resulted in that judgment of conviction, or on an
appeal from that judgment.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967),
paragraph nine of the syllabus; State v. Burton, 4th Dist. Gallia No. 13CA12, 2014-Ohio-
2549, ¶ 17. We overrule Lloyd’s second assignment of error because Lloyd clearly
could have raised any irregularities in the grand jury process in his direct appeal.
{¶14} In his third assignment of error Lloyd asserts that the trial court erred in
determining that his claims regarding the grand jury process were not cognizable in
habeas corpus. Lloyd’s claim is meritless. Habeas corpus is not available to remedy
claims concerning the validity of an indictment. State ex rel. Tarr v. Williams, 112 Ohio
St.3d 51, 2006-Ohio-6368, 857 N.E.2d 1225, ¶ 4. In addition, “ ‘[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,
2004-Ohio-4754, 814 N.E.2d 866, ¶ 6, quoting Orr v. Mack, 83 Ohio St.3d 429, 430,
700 N.E.2d 590 (1998); see also Monroe v. Jackson, 119 Ohio St.3d 344, 2008-Ohio-
4480, 894 N.E.2d 43, ¶ 4. An extraordinary writ like habeas corpus cannot challenge
the validity or sufficiency of the charging instrument, e.g., an indictment. Moreover,
Lloyd had an adequate remedy in the ordinary course of law by his criminal case and
direct appeal to raise his claim that the indictment was defective due to the alleged
coerced testimony of his wife at the grand jury proceeding. Id. We overrule Lloyd’s
third assignment of error.
V. CONCLUSION Ross App. No. 14CA3452 7
{¶15} The trial court properly dismissed Lloyd’s habeas corpus petition for
failure to state a claim upon which relief can be granted. Even after assuming the
veracity of the allegations of his petition and construing them and all reasonable
inferences therefrom most strongly in his favor, it appeared beyond doubt that he was
not entitled to the requested extraordinary relief in habeas corpus.
JUDGMENT AFFIRMED. Ross App. No. 14CA3452 8
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
McFarland, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________ William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.