[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.
