State ex rel. Guthrie v. Fender, 2021-A-0001

• Decision Date: 28 June 2021
• Docket Number: 2021-A-0001
• Parties: STATE OF OHIO ex rel. RUSSELL GUTHRIE, Petitioner, v. DOUGLAS FENDER, WARDEN OF LAKE ERIE CORRECTIONAL, et al., Respondents.
• Court: Ohio Court of Appeals

2021-Ohio-2182

STATE OF OHIO ex rel. RUSSELL GUTHRIE, Petitioner, v. DOUGLAS FENDER, WARDEN OF LAKE ERIE CORRECTIONAL, et al., Respondents.

No. 2021-A-0001

Court of Appeals of Ohio, Eleventh District, Ashtabula

June 28, 2021

Original Action for Writ of Habeas Corpus, Writ of Mandamus and Declaratory Judgment

Judgment Dismissed in part and transferred

Russell Guthrie, pro se, PID# A275-439, Lake Erie Correctional Institution, (Petitioner).

Dave Yost, Ohio Attorney General, and Jerri L Fosnaught, Assistant Attorney General, (For Respondents).

OPINION

PER CURIAM.

{¶1} Pending before this court is the Respondents', Douglas Fender (Warden of the Lake Erie Correctional Institution) and Alicia Handwerk (Chair of the Ohio Parole Board), Motion to Dismiss filed on February 10, 2021. Petitioner, Russell Guthrie, filed a Contra Response to Respondents' Motion to Dismiss on May 4, 2021.

{¶2} On January 7, 2021, Guthrie filed a Petition for Writ of Habeas Corpus (R.C. 2725.01-.28) and Petition for Writ of Mandamus (R.C. 2731.02-.11) and Petition for Declaratory Judgment for Unlawful Imprisonment (R.C. 2743.48).

{¶3} According to the Petition, Guthrie is currently a prisoner at the Lake Erie Correctional Institution in Ashtabula County, Ohio. In April 1993, Guthrie was sentenced to two indefinite prison terms of five to twenty-five years for two counts of Rape and two definite prison terms of twenty-four months for two counts of Gross Sexual Imposition. In August 2019, Guthrie was paroled and released from prison.

{¶4} On June 10, 2020, Guthrie was arrested by an "A.P.A. parole officer and charged as a "technical parole violator." According to the Petition, the charges were based on the following "private phone texts conversations": "In one conversation text a co-worker/friend texted asking petitioner - 'to pick up his bag and gun and drop it off at the friend's house.' Petitioner answered he would do so. The second * * * charged infraction was solely due to 'sexual' texts conversation between petitioner and a consenting adult gay male."

{¶5} On July 20, 2020, Guthrie's parole was revoked, and the "A.P.A. trial official imposed a sentence of 24 months re-imprisonment." A few weeks later, "other high rank [sic] parole board administrative officials inexplicably tripled petitioner's violator sentence to a 5 years sentence."

{¶6} Guthrie asserts that his arrest, reimprisonment, and the revocation of his parole violated the constitutionally protected liberty interests and due-process protections afforded by Scarberry v. Turner, 139 Ohio St.3d 111, 2014-Ohio-1587, 9 N.E.3d 1022, and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). More specifically, he claims that the revocation of his parole was unlawfully based on the exercise of his free speech right, his L.G.B.T. sexual orientation status, nonexistent parole conditions, and an absence of evidence supporting probable cause. For relief, Guthrie seeks "a declaratory judgment finding that petitioner is unlawfully imprisoned"; "a writ of habeas corpus * * * ordering petitioner released from imprisonment"; and "a writ of mandamus * * * ordering respondents to comply with established controlling laws."

{¶7} Respondents seek to have Guthrie's Petition (or Petitions) dismissed for failure to state a claim upon which relief may be granted pursuant to Civil Rule 12(B)(6).

{¶8} "In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted (Civ.R. 12(B)(6)), it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus. "In construing a complaint upon a motion to dismiss for failure to state a claim, we must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party." Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988).

{¶9} "The revocation of parole implicates a liberty interest which cannot be denied without certain procedural protections." State ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 186, 652 N.E.2d 746 (1995). The minimum requirements of due process in revocation proceedings include:

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.

Morrissey, 408 U.S. at 489, 92 S.Ct. 2593, 33 L.Ed.2d 484; Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Minimum due process also encompasses "the right to a hearing within a reasonable time following arrest and, under certain circumstances, the right to counsel." Jackson at 186. "[O]nce a revocation hearing satisfies minimum due process requirements, the decision to deny parole is not subject to judicial review unless parole is revoked for a constitutionally impermissible reason." (Citation omitted.) State v. Fears, 2018-Ohio-1468, 110 N.E.3d 951, ¶ 29 (5th Dist.).

{¶10} "As long as an unreasonable delay has not occurred, the remedy for noncompliance with the Morrissey parole-revocation due process requirements is a new hearing, not outright release from prison." Jackson at 188; Scarberry, 139 Ohio St.3d 111, 2014-Ohio-1587, 9 N.E.3d 1022, at ¶ 13 ("[t]he remedy for an alleged Morrissey due-process violation is a new hearing, not immediate release from prison").

Declaratory Judgment

{¶11} With respect to Guthrie's claim for declaratory judgment, the respondents correctly note that courts of appeal lack original jurisdiction to grant such relief. "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, citing 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).

Habeas Corpus

{¶12} "Whoever is unlawfully restrained of his liberty * * * may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment, restraint, or deprivation." R.C. 2725.01. In the context of parole revocation proceedings, the Ohio Supreme Court has "held that habeas corpus will lie in certain extraordinary circumstances where there is an unlawful restraint of a person's liberty * * * but only where there is no adequate legal remedy, e.g., appeal or postconviction relief." Jackson at 186; Wright v. Ghee, 74 Ohio St.3d 465, 467, 659 N.E.2d 1261 (1996) ("[t]here is no appeal from a parole revocation decision; therefore, there is no adequate legal remedy").

{¶13} To avoid the dismissal of a petition based on due process violations, "a petitioner must state with particularity the extraordinary circumstances entitling him to habeas corpus relief." Jackson at 187. Moreover "unsupported conclusions of the petition or complaint are not considered admitted and are insufficient to withstand a motion to dismiss." Id.

{¶14} Guthrie's Petition fails to demonstrate extraordinary circumstances that would entitle him to immediate release from prison rather than a new revocation hearing. Guthrie claims the conduct for which parole was revoked either did not violate the terms of parole and/or was constitutionally protected. While these claims, if substantiated, could be grounds for challenging the revocation of parole, they do not demonstrate extraordinary circumstances justifying immediate release. See, e.g., State ex rel. Womack v. Sloan, 152 Ohio St.3d 32, 2017-Ohio-8708, 92 N.E.3d 836, ¶ 4 and 7 (petitioner "claiming violations of his due-process, equal-protection, and confrontation rights" had "not established that this is one of the 'extraordinary cases' in which habeas corpus will lie to challenge the APA's parole-revocation decision"); Greene v. Turner, 151 Ohio St.3d 513, 2017-Ohio-8305, 90 N.E.3d 901, ¶ 10 (petitioner's claim "that he was deprived of due process because the state presented insufficient evidence at his parole-revocation hearing for the APA to find a violation" failed to establish "that his is one of the 'extraordinary cases involving parole revocation' in which habeas corpus will lie to challenge a decision of the APA"); State ex rel. Crigger v. Ohio Adult Parole Auth., 82 Ohio St.3d 270, 272, 695 N.E.2d 254 (1998) ("contentions that the subsequent parole revocation proceedings denied him due process of law * * * and resulted in ex post facto imposition of punishment are not cognizable in habeas corpus").

{¶15} Concomitant with the failure to establish justification for immediate release, Guthrie failed to comply with the requirement to attach to the Petition "[a] copy of the commitment or cause of detention." R.C. 2725.04(D). Guthrie did attach a copy of his original April 23, 1993 sentencing entry and a copy of a Sanction Receipt advising him that his next parole availability date had been extended to June 2025. Neither of these documents provide any information regarding the decision to revoke his parole or on what grounds that decision was based. Brown v Rogers, 72 Ohio St.3d 339, 341, 650 N.E.2d 422 (1995) ("the sentencing order is irrelevant for purposes of the questions presented by this petition"). As to the cause of...