[Cite as Gordon v. Smith,
2024-Ohio-5065.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
DANTÉ D. GORDON,
Petitioner,
v.
SHELBY SMITH, WARDEN,
Respondent.
OPINION AND JUDGMENT ENTRY
Case No. 24 BE 0007
Writ of Habeas Corpus
BEFORE:
Mark A. Hanni, Carol Ann Robb, Katelyn Dickey, Judges.
JUDGMENT:
Dismissed.
Dante D. Gordon, Pro se, Petitioner and
Atty. Dave Yost, Ohio Attorney General, and Atty. Lisa K. Browning, Senior Assistant
Attorney General, Criminal Justice Section, for Respondent.
Dated: October 22, 2024
–2–
PER CURIAM.
{¶1} Petitioner Danté D. Gordon has filed this original action for a writ of habeas
corpus seeking his immediate release from the Belmont Correctional Institution (BECI).
BECI is one of the Ohio Department of Rehabilitation and Correction’s prison facilities.
Gordon is a self-represented prison inmate and his petition names the BECI’s warden,
Shelby Smith, as Respondent. Gordon argues the trial court was without jurisdiction to
convict and sentence him. The warden has filed a motion to dismiss under Civ.R.
12(B)(6). Because Gordon’s claims are not cognizable in a habeas corpus proceeding,
we grant the warden’s motion and dismiss the complaint.
Facts & Procedural History
{¶2} In the early morning hours of December 7, 1997, Gordon and Gregory
Parnagian got into an argument in the dining room of a home in Akron, Ohio. In front of
multiple witnesses, Gordon pulled a handgun from his waistband, put it to Parnagian’s
head and pulled the trigger, killing him. Later that day, a police detective filed a complaint
in Akron Municipal Court charging Gordon with aggravated murder in violation of R.C.
2903.01(A) and a warrant was issued for his arrest. State of Ohio v. Danté Gordon, Akron
M.C. No. 97-CR-13441 (Dec. 7, 1997).
{¶3} Cincinnati police arrested Gordon approximately eight months later on an
unrelated charge. Upon discovery of Gordon’s aggravated murder arrest warrant, Akron
police were notified and they took custody of him from the Hamilton County Jail on August
4, 1998. Gordon was arraigned in Akron Municipal Court on August 5, 1998, where bond
was set at $5 million.
{¶4} Gordon was indicted on August 11, 1998 by the May 1998 term of the
Summit County, Ohio Grand Jury, on one count of aggravated murder in violation of R.C.
2903.01(A) with an attendant firearm specification under R.C. 2941.145. State v. Gordon,
Summit C.P. No. CR-1998-08-1896. Gordon was arraigned in Summit County Common
Pleas Court the following day on August 12, 1998, where he appeared with hired counsel,
Attorney Donald Walker. Gordon pleaded not guilty and moved for bond modification.
The court denied the motion, remanded Gordon to the Summit County Jail, and scheduled
Case No. 24 BE 0007
–3–
the case for a pretrial. On December 15, 1998, Gordon filed a notice of alibi under Crim.R.
12.1 and R.C. 2945.58, identifying as alibi witnesses Tyrone Burton, Charlotte Burton,
and Constance Boyd (Gordon’s girlfriend).
{¶5} On December 17, 1998, and pursuant to plea negotiations, the State moved
the trial court to amend the indictment to the lesser and included offense of murder, which
the court granted. In return, Gordon retracted his previous not guilty plea and entered a
plea of guilty to murder and the firearm specification as contained in the amended
indictment. The trial court sentenced Gordon to an actual three-year mandatory prison
sentence on the firearm specification and an indeterminate 15 years to life in prison for
murder, resulting in an aggregate sentence of 18 years to life in prison. State v. Gordon,
Summit C.P. No. CR-1998-08-1896 (Journal Entry filed Dec. 22, 1998).
{¶6} Gordon did not file a timely appeal of his conviction and sentence. Instead,
several months later, he filed a pro se motion to withdraw his guilty plea under Crim.R.
32.1. The trial court promptly denied the motion. State of Ohio v. Danté Gordon, Summit
C.P. No. CR-1998-08-1896 (approved July 8, 1999; filed July 14, 1999). Gordon then
attempted to appeal this denial to the Ninth District Court of Appeals, but his notice of
appeal was filed late. Consequently, the state’s motion to dismiss the appeal as untimely
was granted, and the appeal was dismissed. State v. Gordon, 9th Dist. Summit No. 19744
(Sept. 27, 1999 Journal Entry).
{¶7} On February 25, 2000, Gordon filed what would become his first of two
motions for a delayed appeal of his December 22, 1998 conviction and sentence with the
Ninth District Court of Appeals. Gordon’s notice of appeal, included with this motion, was
untimely by 400 days. Gordon argued (1) his guilty plea was not knowing, intelligent, or
voluntary because the trial court did not substantially comply with Crim.R. 11 and (2) he
was denied the effective assistance of counsel. As for the reason Gordon failed to perfect
his appeal within 30 days, he stated: “The Court informed me that I was giving up certain
appellate rights upon my plea and no longer having counsel after the proceedings I was
not aware of my rights to an appeal.” The state filed an opposition to Gordon’s motion for
leave to appeal arguing he failed to set forth sufficient reasons for the delay.
{¶8} The court of appeals denied Gordon’s motion for a delayed appeal, citing
his failure to provide supporting documentation or sufficient reasons for the untimely filing.
Case No. 24 BE 0007
–4–
State v. Gordon, 9th Dist. Summit No. 19984 (Mar. 20, 2000 Journal Entry). Gordon’s
subsequent application for reconsideration was also rejected as untimely. State v.
Gordon, 9th Dist. Summit No. 19984 (Apr. 11, 2000 Journal Entry), appeal not accepted,
State v. Gordon, 89 Ohio St.3d 1454 (2000).
{¶9} In March 2010, a decade after his initial sentencing, Gordon petitioned the
trial court for a new sentencing on the basis that his original sentencing entry was void
due to an erroneous inclusion of post-release control. The trial court summarily denied
the motion, and Gordon appealed to the Ninth District Court of Appeals which affirmed.
State v. Gordon, 2010-Ohio-6308 (9th Dist.), appeal not accepted, State v. Gordon, 2011-
Ohio-1618.
{¶10} In January 2011, Gordon filed another motion to withdraw his guilty plea,
along with motions to dismiss the indictment and inspect grand jury transcripts. His plea
withdrawal motion was based on claims of ineffective assistance of counsel, alleging that
his trial counsel, Attorney Donald “Doc” Walker, had failed to provide adequate
representation. Gordon asserted that Walker had withheld critical information, failed to
properly investigate the case, and coerced him into pleading guilty. These alleged
failures, Gordon argued, prevented him from fully understanding the nature of the charges
and the consequences of his plea.
{¶11} Gordon’s motion to dismiss the indictment was rooted in his belief that the
indictment was defective and invalid due to the absence of the Grand Jury Foreperson’s
signature, suggesting either a post-filing signature or a forgery. The trial court denied all
three motions, finding that Gordon had not met his burden of proving a manifest injustice
that would warrant the withdrawal of his plea. State v. Gordon, Summit C.P. No. CR-1998-
08-1896 (Apr. 3, 2011 Order). The court also determined that Gordon’s claims of
ineffective assistance of counsel were unsubstantiated, noting that the transcripts
attached to his motion contradicted his assertions, and that his other evidence consisted
mainly of broad, self-serving statements. Additionally, the court found that Gordon’s
claims were barred by the doctrine of res judicata.
{¶12} Regarding the indictment, the trial court found it was properly signed and
filed on August 11, 1998, containing all necessary elements. The court acknowledged
that Gordon had submitted two versions of the indictment—one signed and one
Case No. 24 BE 0007
–5–
unsigned—but concluded that the signed version in the official record was valid.
Consequently, the trial court determined that the indictment was neither defective, invalid,
nor void.
{¶13} Gordon’s appeal to the Ninth District Court of Appeals raised several issues.
He argued that the trial court had abused its discretion by denying his motion to withdraw
his guilty plea. Additionally, he contended that the court erred in failing to conduct a
hearing on that motion. Gordon also challenged the trial court’s decision to deny his
motion to dismiss the indictment without a hearing.
{¶14} The appellate court affirmed the trial court’s decision, holding that Gordon’s
claims regarding defects in the plea hearing were barred by res judicata. State v. Gordon,
2012-Ohio-902 (9th Dist.). The court reasoned that these issues could have been raised
on direct appeal. Gordon’s failure to file a timely appeal in 1998 and the subsequent
denial of his motion for a delayed appeal precluded him from raising these claims now.
{¶15} Furthermore, the court found no merit in Gordon’s ineffective assistance of
counsel claim. It noted that during the plea hearing, Gordon had acknowledged engaging
in extensive discussions with his attorney about the nature of the evidence against him.
The court also considered the significant delay in filing the motion to withdraw the plea,
which it viewed as a factor weighing against granting the motion. Given the lack of
supporting evidence for Gordon’s claims, the court found no requirement for a hearing.
Lastly, the appellate court confirmed the validity of the indictment, finding it properly
signed and filed. Any further challenge to the indictment, the court concluded, was also
barred by res judicata. Gordon appealed to the Ohio Supreme Court which declined to
accept jurisdiction. 06/06/2012 Case Announcements, 2012-Ohio-2454.
{¶16} In April 2012, Gordon made another attempt to challenge his conviction by
filing a second motion for leave to file a delayed appeal. He claimed he had only recently
become aware of his appellate rights. However, the Ninth District summarily denied the
motion. State v. Gordon, 9th Dist. Summit No. 26379 (Apr. 26, 2012 Journal Entry);
appeal not accepted, 07/25/2012 Case Announcements, 2012-Ohio-3334.
{¶17} In the years that followed, Gordon continued to challenge his conviction
through various legal avenues. He filed motions to correct his sentence, compel the
issuance of a final appealable order, and vacate his judgment and sentence as void. He
Case No. 24 BE 0007
–6–
filed successive petitions for postconviction relief and another motion to withdraw his
guilty plea. These efforts were consistently unsuccessful, with the trial court denying his
motions and the Ninth District Court of Appeals affirming these decisions or dismissing
his appeals. State v. Gordon, 9th Dist. Summit No. 28820 (Dec. 28, 2017 Journal Entry);
State v. Gordon, 2018-Ohio-4311 (9th Dist.); State v. Gordon, 9th Dist. Summit No. 29816
(Oct. 13, 2020 Journal Entry), appeal not accepted, 02/02/2021 Case Announcements,
2021-Ohio-254; State v. Gordon,
2023-Ohio-2754 (9th Dist.). Gordon was similarly
unsuccessful in federal court. Gordon v. Turner,
2015 WL 3969689 (N.D. Ohio June 30,
2015), certificate of appealability denied (6th Cir. 15-3829) (Jan 12, 2016).
Habeas Corpus
{¶18} As we turn to the legal standard for habeas corpus, it is important to clarify
the limited circumstances under which this extraordinary remedy is available. R.C.
2725.01 provides: “Whoever is unlawfully restrained of his liberty, or entitled to the
custody of another, of which custody such person is unlawfully deprived, may prosecute
a writ of habeas corpus, to inquire into the cause of such imprisonment, restraint, or
deprivation.” Generally, a writ of habeas corpus is available only when a petitioner’s
maximum sentence has expired and he is being held unlawfully, Leyman v. Bradshaw,
2016-Ohio-1093, ¶ 8, or when the sentencing court patently and unambiguously lacked
subject-matter jurisdiction, see Stever v. Wainwright,
2020-Ohio-1452, ¶ 8. The writ is
not available when the petitioner has an adequate remedy in the ordinary course of law
unless the trial court’s judgment is void for lack of jurisdiction. State ex rel. Davis v.
Turner,
2021-Ohio-1771, ¶ 8.
Civ.R. 12(B)(6) Standard of Review
{¶19} Having established the limited scope of habeas corpus relief, we now
address the warden's motion to dismiss. Counsel for the warden has filed a motion to
dismiss under Civ.R. 12(B)(6), arguing Gordon’s claims are not cognizable in a habeas
corpus action, he had an adequate alternative legal remedy by which to raise his claims,
and he has not demonstrated he is entitled to immediate release from confinement.
Case No. 24 BE 0007
–7–
{¶20} Under Civ.R. 12(B)(6), we must presume 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 may only be
dismissed when, having viewed the complaint in this way, it appears beyond doubt the
relator can prove no set of facts that would entitle him to the relief requested. Goudlock
v. Voorhies,
2008-Ohio-4787, ¶ 7.
Double-Dismissal Rule
{¶21} Before addressing Gordon’s claims, we must consider the procedural bar
presented by the double-dismissal rule. This rule is relevant because it impacts whether
Gordon’s current petition can be heard at all, given his previous actions. Civ.R. 41(A)
states that a second voluntary dismissal of the same claim is considered an adjudication
on the merits, which precludes a subsequent complaint asserting the same cause of
action. Olynyk v. Scoles, 2007-Ohio-2878, ¶ 10.
{¶22} Gordon has twice voluntarily dismissed prior habeas petitions involving the
same claims—once on July 28, 2023, and again on February 8, 2024. Gordon v. Gray,
7th Dist. Belmont No. 22 BE 0073; Gordon v. Gray, 7th Dist. Belmont No. 23 BE 0038.
Thus, the second dismissal operates as an adjudication on the merits, and res judicata
bars his current petition.
Gordon’s Claims Not Cognizable in Habeas Corpus
{¶23} Even if Gordon’s petition were not procedurally barred, his claims do not
warrant habeas relief. Habeas corpus is an extraordinary remedy, reserved for instances
where the petitioner’s conviction is void due to lack of jurisdiction or where the petitioner
is unlawfully held beyond the expiration of their maximum sentence. Stevens v. Hill, 2022-
Ohio-2479, ¶ 7. Gordon’s maximum sentence has not expired, and none of his claims
establish that the trial court lacked jurisdiction.
{¶24} Gordon’s first argument challenges the validity of his conviction by claiming
that the trial court lacked both subject matter and personal jurisdiction. He contends that
the indictment was defective because the grand jury foreperson’s signature was missing,
Case No. 24 BE 0007
–8–
which he believes should invalidate the entire case. However, this claim reflects a
misunderstanding of how jurisdiction works in criminal cases.
{¶25} Since Gordon pleaded guilty, as many habeas petitioners do, he couches
each of his claims, including the one related to his indictment, broadly as constitutional
violations obviating the trial court’s jurisdiction to bypass legal rules like waiver, which
prevent raising such claims long after a conviction. See State v. Love, 2018-Ohio-1140,
¶ 24, fn. 1 (7th Dist.). But the Supreme Court of Ohio routinely rejects arguments from
habeas defendants who claim the trial court lacked subject matter jurisdiction due to a
deficient indictment. Payne v. Jeffreys,
2006-Ohio-2288, ¶ 5 (validity and sufficiency of
the indictment must be raised on direct appeal); VanBuskirk v. Wingard,
80 Ohio St.3d
659, 660, (1998); In re Bryant,
171 Ohio St. 16 (1960) (where a prisoner sought release
by habeas corpus on the ground the indictment did not charge an offense, the Court
concluded the allegation did not implicate subject matter jurisdiction).
{¶26} Ohio law clearly establishes that subject matter jurisdiction in criminal cases
is conferred by statute. R.C. 2931.03 grants courts of common pleas jurisdiction over all
felony offenses committed within their respective counties. This jurisdictional grant is not
dependent on the procedural perfection of an indictment. Even if an indictment is flawed
in some procedural aspect, it does not strip the court of its fundamental jurisdiction to
hear the case.
{¶27} The Supreme Court addressed this very issue in State ex rel. Justice v.
McMackin, 53 Ohio St.3d 72 (1990). The petitioner in that case claimed he was brought
to trial on the basis of an indictment that was never voted on by a grand jury. He claimed
the document purporting to be an indictment was simply fabricated by the Summit County
Prosecuting Attorney’s office and that the signature of the grand jury foreman on the
purported indictment was a forgery. He further alleged the judge at his trial and the
attorneys who represented him at various stages conspired with governmental authorities
to conceal the alleged forgery. In short, like Gordon, he maintained there never was an
indictment and that the foreman’s signature was forged in order to perpetrate a fraud on
the court.
{¶28} The Court rejected the petitioner’s argument, making clear that an allegation
of fraud on the part of authorities involved in the prosecution does not constitute a
Case No. 24 BE 0007
–9–
challenge to the jurisdiction of the trial court. Id. at 73, citing Wireman v. Adult Parole
Auth.,
38 Ohio St.3d 322 (1988). Therefore, the grand jury’s indictment here, even if
imperfect, validly conferred jurisdiction over Gordon. His claims to the contrary simply
are not cognizable in this action for a writ of habeas corpus.
{¶29} Gordon also contends that his arrest was unlawful due to a lack of probable
cause and a valid warrant, further arguing that these issues deprived the court of
jurisdiction. Similar to claims involving an allegedly defective indictment, habeas corpus
cannot be used to challenge defects arising from an alleged failure to file criminal
complaints or claims that the trial court improperly assumed jurisdiction over criminal
charges. State ex rel. Rackley v. Sloan, 2016-Ohio-3416, ¶ 6. Charging an accused is a
procedural matter, not a jurisdictional one.
Id. Therefore, once convicted based on an
indictment, the judgment binds the defendant to the crimes specified.
Id. Furthermore,
an illegal arrest does not invalidate subsequent proceedings rooted in a valid indictment,
nor does it provide grounds for release through habeas corpus after conviction.
Id.
{¶30} Gordon was charged in an indictment issued by the Summit County Grand
Jury, and he pleaded guilty and was ultimately sentenced on that indictment. State v.
Gordon, Summit C.P. No. CR-1998-08-1896 (Journal Entry filed Dec. 22, 1998); State v.
Gordon, 2012-Ohio-902 (9th Dist.). Therefore, the trial court possessed the requisite
jurisdiction to accept his guilty plea and sentence him to prison. See R.C. 2931.03.
{¶31} Gordon’s complaint ventures beyond procedural territory into substantive
claims of innocence. He asserts that his conviction was the result of false evidence and
fraudulent documents produced by the Akron Police Department and the Summit County
Prosecutor’s Office. These allegations, even if true, do not implicate the jurisdiction of
the trial court, which is the central concern in habeas proceedings.
{¶32} Claims of actual innocence, sufficiency of evidence, or prosecutorial
misconduct are substantive issues that should have been addressed through direct
appeals or postconviction relief. The Ohio Supreme Court has established that such
claims are not cognizable in habeas corpus unless they directly challenge the trial court’s
jurisdiction. Kneuss v. Sloan, 2016-Ohio-3310, ¶ 6; Orr v. Schweitzer,
2021-Ohio-1786
Case No. 24 BE 0007
– 10 –
(actual innocence, sufficiency of the evidence, and prosecutorial misconduct not
cognizable in habeas).
{¶33} Finally, Gordon alleges that his trial counsel provided ineffective assistance,
further contributing to his wrongful conviction. However, claims involving the ineffective
assistance of counsel or the alleged denial of the right to counsel are not cognizable in
habeas corpus. Bozsik v. Hudson, 2006-Ohio-4356, ¶ 7. Such claims do not deprive the
trial court of jurisdiction over the case. Id. at ¶ 9. Under R.C. 2725.05, if a person is in
custody by virtue of a judgment of a court of record and the court had jurisdiction to render
the judgment, the writ of habeas corpus may not be allowed and the petitioner “shall not
be discharged by reason of any informality or defect in the process, judgment, or order.”
The right to counsel is guaranteed by the Sixth Amendment to the Constitution of the
United States. “Therefore, redress for a deprivation of the right should be sought via
appeal or postconviction relief under R.C. 2953.21.”
Bozsik at ¶ 9.
{¶34} In conclusion, all of Gordon’s claims—whether they pertain to alleged
jurisdictional defects, procedural errors, or substantive injustices—fail to establish a basis
for habeas corpus relief. The Summit County Court of Common Pleas had both subject
matter and personal jurisdiction over Gordon’s case, and none of the alleged defects
raised by Gordon undermine the validity of his conviction or the court’s authority. Even
assuming the truth of all factual allegations in Gordon’s complaint and making all
reasonable inferences in his favor, it is clear beyond doubt that he can prove no set of
facts that would entitle him to the relief requested.
Case No. 24 BE 0007
– 11 –
{¶35} Accordingly, the warden’s motion to dismiss is granted and Gordon’s
complaint for a writ of habeas corpus is dismissed. Any and all unresolved motions and
filings not specifically addressed herein are hereby dismissed as moot. Costs assessed
to Gordon. Final order. 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. Civ.R. 58.
JUDGE MARK A. HANNI
JUDGE CAROL ANN ROBB
JUDGE KATELYN DICKEY
Case No. 24 BE 0007
