The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Guthrie v. Fender, Slip Opinion No. 2022-Ohio-767.]
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. 2022-OHIO-767
THE STATE EX REL . GUTHRIE, APPELLANT , v. FENDER, WARDEN, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Guthrie v. Fender, Slip Opinion No.
2022-Ohio-767.]
Habeas corpus and declaratory judgment—Habeas corpus not proper remedy to
address allegedly improper revocation of parole—Appellant not entitled to
immediate release—Equal-protection claims not cognizable in habeas
corpus—Courts of appeals lack original jurisdiction over claims for
declaratory judgment—Court of appeals’ denial of relief affirmed.
(No. 2021-0871—Submitted February 8, 2022—Decided March 17, 2022.)
APPEAL from the Court of Appeals for Ashtabula County, No. 2021-A-0001.
__________________
Per Curiam.
{¶ 1} Appellant, Russell Guthrie, a prison inmate, alleges that the Ohio
Adult Parole Authority violated his constitutional rights to due process, free speech,
and equal protection by revoking his parole based on text messages found on his
SUPREME COURT OF OHIO
phone. Guthrie filed an original action in the Eleventh District Court of Appeals
seeking a declaratory judgment and writs of habeas corpus and mandamus. The
Eleventh District dismissed the declaratory-judgment and habeas claims but
transferred the mandamus claim (as to one respondent, Alicia Handwerk, chair of
the Ohio Parole Board) to the Tenth District Court of Appeals. We affirm.
Background
Factual allegations
{¶ 2} In 1993, Guthrie was convicted on two counts of rape and two counts
of gross sexual imposition. Guthrie claims that he was sentenced to an aggregate
prison term of 10 to 50 years and released on parole in August 2019.
{¶ 3} In June 2020, Guthrie was found to be in violation of the conditions
of his parole and reincarcerated. Guthrie alleges that the finding of a violation was
based on two text-message conversations that a parole officer discovered on
Guthrie’s phone. Guthrie says that in one conversation, someone asked him to pick
up a bag and a gun and drop them off at a house. Guthrie responded to the request
with a text message saying that he would do so. According to Guthrie, the other
conversation involved “ ‘sexual’ texts” between him and “a consenting adult gay
male.”
{¶ 4} Guthrie alleges that based only on this evidence, a parole-board hearing
officer found that he had violated the terms of his parole and recommended that he
serve 24 months in prison before being considered again for release. The Ohio Parole
Board later modified the sanction, indicating that Guthrie would not be considered
for release until June 2025. Guthrie is incarcerated at the Lake Erie Correctional
Institution, where appellee, Douglas Fender, is warden.
Procedural history
{¶ 5} In January 2021, Guthrie filed an original action in the Eleventh
District. In addition to Fender, Guthrie named Handwerk, chair of the parole board,
as a respondent in his petition. Guthrie alleged that there was no evidence that he
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January Term, 2022
had possessed an operable firearm in violation of the terms of his parole and that
the text messages that were sexual in nature did not violate the terms of his parole.
He asserted that the revocation of his parole violated his rights to due process, free
speech, and equal protection. Guthrie sought a declaratory judgment of wrongful
imprisonment under R.C. 2743.48, a writ of habeas corpus ordering his release from
prison, and a writ of mandamus ordering Fender and Handwerk “to comply with
established controlling law” as specified in Morrissey v. Brewer, 408 U.S. 471, 484,
92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and other cases.
{¶ 6} The Eleventh District dismissed Guthrie’s declaratory-judgment
claim for lack of jurisdiction. The court also dismissed the habeas claim, holding
that Guthrie had not alleged circumstances entitling him to immediate release from
prison and that Guthrie had failed to file copies of all commitment papers as
required under R.C. 2725.04(D). But the court held that Guthrie had stated a
potentially viable mandamus claim against Handwerk because under the alleged
facts, Guthrie could be entitled to a new parole-revocation hearing. The Eleventh
District determined that Franklin County is the appropriate venue for adjudication
of that claim and transferred the action to the Tenth District. The Eleventh District
dismissed the mandamus claim as to Fender because the warden has no legal duty
to conduct parole-revocation hearings.
{¶ 7} Guthrie appeals as of right to this court.
Analysis
Standard of review
{¶ 8} We review de novo the Eleventh District’s judgment dismissing
Guthrie’s declaratory-judgment and habeas corpus claims. Lunsford v. Sterilite of
Ohio, L.L.C., 162 Ohio St.3d 231, 2020-Ohio-4193, 165 N.E.3d 245, ¶ 22. We must
accept as true all factual allegations in Guthrie’s petition. Id. The petition was
properly dismissed only if it appears beyond doubt from the petition that Guthrie can
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prove no set of facts entitling him to relief. O’Brien v. Univ. Community Tenants
Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus.
Declaratory judgment
{¶ 9} The Eleventh District’s dismissal of Guthrie’s declaratory-judgment
claim was proper. “It is well settled that ‘[c]ourts of appeals lack original
jurisdiction over claims for declaratory judgment.’ ” State ex rel. E. Cleveland v.
Dailey, 160 Ohio St.3d 171, 2020-Ohio-3079, 154 N.E.3d 84, ¶ 4, quoting State ex
rel. Natl. Elec. Contrs. Assn., Ohio Conference v. Ohio Bur. of Emp. Servs., 83
Ohio St.3d 179, 180, 699 N.E.2d 64 (1998); see also Ohio Constitution, Article IV,
Section 3(B)(1).
Habeas corpus
{¶ 10} “A writ of habeas corpus lies 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.” Pegan v. Crawmer, 76 Ohio St.3d 97, 99,
666 N.E.2d 1091 (1996). “A writ of habeas corpus is generally ‘available only
when the petitioner’s maximum sentence has expired and he is being held
unlawfully.’ ” Leyman v. Bradshaw, 146 Ohio St.3d 522, 2016-Ohio-1093, 59
N.E.3d 1236, ¶ 8, quoting Heddleston v. Mack, 84 Ohio St.3d 213, 214, 702 N.E.2d
1198 (1998). “[H]abeas corpus lies only if the petitioner is entitled to immediate
release from confinement.” Scarberry v. Turner, 139 Ohio St.3d 111, 2014-Ohio-
1587, 9 N.E.3d 1022, ¶ 14.
{¶ 11} “[T]he revocation of parole implicates constitutional liberty interests
and triggers certain due-process protections.” State ex rel. Womack v. Sloan, 152
Ohio St.3d 32, 2017-Ohio-8708, 92 N.E.3d 836, ¶ 6, citing Morrissey, 408 U.S.
471, 92 S.Ct. 2593, 33 L.Ed.2d 484. But “[t]he remedy for an alleged Morrissey
due-process violation is a new hearing, not immediate release from confinement.”
Scarberry at ¶ 13. Habeas corpus generally “is the wrong remedy to challenge
alleged due-process violations at a parole hearing.” Id. at ¶ 14. When a revocation
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January Term, 2022
hearing is conducted in violation of a person’s due-process rights, the appropriate
remedy generally is a writ of mandamus to compel a new hearing. State ex rel.
Ellison v. Black, 165 Ohio St.3d 310, 2021-Ohio-3154, 178 N.E.3d 508, ¶ 12.
{¶ 12} We have recognized an exception to this general rule, “in extreme
circumstances involving unreasonable delay.” Id. at ¶ 13, quoting Scarberry at
¶ 14. But Guthrie has not alleged unreasonable delay. Because Guthrie is not
entitled to immediate release from confinement, the court of appeals properly
dismissed the habeas corpus claim. Guthrie’s potential remedy lies in mandamus.
Judgment affirmed.
O’CONNOR, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, and
BRUNNER, JJ., concur.
KENNEDY, J., concurs in judgment only.
_________________
Russell Guthrie, pro se.
Dave Yost, Attorney General, and Jerri L. Fosnaught, Assistant Attorney
General, for appellee.
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