[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 
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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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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-Ohio1587, 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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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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