[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 C.A. No. 20CA011705 Petitioner
v. ORIGINAL ACTION IN KEITH FOLEY, WARDEN HABEAS CORPUS
Respondent
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.
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[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 C.A. No. 20CA011705 Petitioner
v. ORIGINAL ACTION IN KEITH FOLEY, WARDEN HABEAS CORPUS
Respondent
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.