Peterson v. Foley

[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 …

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