Orr v. Schweitzer (Slip Opinion) , 2021 Ohio 1786 ( 2021 )

[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-1786ORR, 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.
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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
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-due-
process 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
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January Term, 2021
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.
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SUPREME COURT OF OHIO
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.
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January Term, 2021
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.
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Darllel Orr, pro se.
Dave Yost, Attorney General, and Stephanie L. Watson, Assistant Attorney
General, for appellee.
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