[Cite as Calo v. Black,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

DENNIS CALO and JUDGES: DONALD RICHARD Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Petitioners Hon. Andrew J. King, J.

-vs- Case No. 2023 CA 0062

WARDEN KENNETH BLACK OPINION

Respondent

CHARACTER OF PROCEEDING: Writ of Habeas Corpus

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: January 31, 2024

APPEARANCES:

For Petitioners For Respondent

DENNIS CALO, PRO SE DAVE YOST DONALD RICHARD, PRO SE OHIO ATTORNEY GENERAL RICHLAND CORR. INSTITUTION KATHERINE E. MULLIN 1001 Olivesburg Road SENIOR ASSISTANT AG Mansfield, Ohio 44905 30 East Broad Street, 23rd Floor Columbus, Ohio 43215-6001 Richland County, Case No. 2023 CA 0062 2

Wise, J.

{¶1} On November 2, 2023, Petitioners Dennis Calo and Donald Richard filed a

Petition for Writ of Habeas Corpus. On November 20, 2023, Respondent Warden

Kenneth Black filed a Motion to Dismiss/Motion for Summary Judgment. Petitioners filed

an untimely Motion in Opposition to Respondent’s Motion for Summary Judgment and/or

Petitioners (sic) Motion for Summary Judgment on January 16, 2024.1 For the following

reasons, Respondent’s Motion to Dismiss is granted.

I. FACTS AND PROCEDURAL HISTORY

{¶2} On April 27, 1984, Petitioner Dennis Calo was sentenced to life in prison

following his convictions in Cuyahoga Case No. 186387. Calo asserts that he did not

receive a mandatory “half-time” review of his continued time in 2004, and thereby custody

over the paroling procedures for him were waived in 2004 resulting in his alleged wrongful

imprisonment.

{¶3} On May 7, 1987, Petitioner Donald Richard was sentenced to life in prison

following convictions in Cuyahoga Case No. 215283. Like Calo, Richard also asserts that

he should have been provided a mandatory “half-time” review in 2005 and thereby

custody over the paroling procedures were waived in 2005 resulting in his alleged

wrongful imprisonment.

1 On December 14, 2023, Petitioners filed a Motion for Enlargement of Time and Notice

to the Court of Notary Interference at the Richland County Correctional Institution. The Court granted Petitioners’ request for an extension on December 18, 2023, ordering Petitioners’ response due on or before January 11, 2024. Petitioners filed their response four days late and therefore, we will only consider the late response as it pertains to Respondent’s Motion to Dismiss. We decline to address Petitioners’ summary judgment motion because it is untimely and because we are granting Respondent’s Civ.R. 12(B)(6) motion. Richland County, Case No. 2023 CA 0062 3

{¶4} Petitioners ask this Court to issue a writ of habeas corpus because the Ohio

Department of Rehabilitation and Corrections allegedly refuses to perform its statutory

duties. Petitioners claim they were denied lawfully mandated parole board hearings,

including the hearing under O.A.C. 5120:1-1-20(F)(1), as this code section existed on the

date of the commission of their respective offenses for which they were subsequently

convicted. Finally, Petitioners request that we certify a class action under Civ.R. 23. That

request will be addressed in a separate Judgment Entry issued simultaneously with this

opinion.

II. CIV.R. 12(B) (6) STANDARD AND HABEAS CORPUS ELEMENTS

{¶5} Respondent Black filed a Motion to Dismiss/Motion for Summary Judgment.

We will address Respondent’s motion only as it pertains to Civ.R. 12(B)(6) because we

find the petition fails to state a claim for habeas relief.

{¶6} The purpose of a Civ.R. 12(B)(6) motion is to test the sufficiency of the

complaint. State ex rel. Boggs v. Springfield Loc. School Dist. Bd. of Edn.,

,

(1995). In order for a case to be dismissed for failure to state a

claim, it must appear beyond doubt that, even assuming all factual allegations in the

complaint are true, the nonmoving party can prove no set of facts that would entitle that

party to the relief requested. Keith v. Bobby,

,

,

.

{¶7} If a petition does not satisfy the requirements of a properly filed petition for

writ of habeas corpus or does not present a facially viable claim, it may be dismissed on

motion by the respondent or sua sponte by the court. Flora v. State, 7th Dist. Belmont No.

04 BE 51,

. Finally, we are permitted to consider material Richland County, Case No. 2023 CA 0062 4

incorporated within a complaint as part of that pleading, without having to convert the

matter to a summary judgment proceeding. See Boyd v. Archdiocese of Cincinnati, 2d

Dist. Montgomery No. 25950,

, ¶ 14 (“Material incorporated in a

complaint may be considered part of the complaint for purposes of determining a Civ.R.

12(B)(6) motion to dismiss.”)

{¶8} “To be entitled to a writ of habeas corpus, a petitioner must show that he is

being unlawfully restrained of his liberty and that he is entitled to immediate release from

prison or confinement.” State ex rel. Whitt v. Harris,

,

,

, ¶ 6, citing R.C. 2725.01; State ex rel. Cannon v. Mohr,

,

,

. “[A]n inmate is not usually eligible for habeas

relief until his maximum sentence has expired.” [Citation omitted.] Pence v. Bunting,

,

,

. Finally, habeas corpus is not

available when an adequate remedy at law exists. Billiter v. Banks,

,

,

. (Citations omitted.)

III. ANALYSIS

A. Petitioners are not entitled to immediate release from prison and therefore, cannot state a claim for habeas relief.

{¶9} Petitioners claim the Ohio Parole Board misapplied the Ohio Administrative

Code and failed to provide them with “mandatory half-time review” for parole board

hearings entitling them to release from prison. Habeas corpus is generally appropriate in

the criminal context only if the prisoner is entitled to immediate release from prison.

Douglas v. Money,

,

(1999). “[N]on-jurisdictional

errors afford no basis for issuing the writ. * * * Although the writ is available to parties who

unlawfully are deprived of their liberty, it is unavailable to those deprived of their freedom Richland County, Case No. 2023 CA 0062 5

pursuant to a lawful criminal sentence.” Stahl v. Shoemaker,

,

(1977).

{¶10} Petitioners have no constitutional right to parole. State ex rel. Henderson v.

Ohio Dept. of Rehab. & Corr.,

,

. As such, there is no

constitutional or statutory right to earlier consideration of parole. State ex rel. Vaughn v.

Ohio Adult Parole Auth.,

,

(1999). Mandatory half-

time review of parole does not equate to a legal right to release from prison, which

Petitioners need to establish to be entitled to habeas relief.

{¶11} The Ohio Administrative Code section referenced by Petitioners, O.A.C.

5120:1-1-20, merely addresses the timing of parole hearings, it does not entitle them to

release from prison before they serve their maximum sentences, i.e. life in prison.

{¶12} Therefore, because Petitioners are not entitled to immediate release from

prison they cannot state a claim for habeas relief.

B. No ex post facto violation exists entitling Petitioners to immediate release from prison.

{¶13} Petitioners also contend they were entitled to mandated parole board

hearings, under O.A.C. 5120:1-1-20(F)(1), as that code section existed on the date of the

commission of the offenses for which they were convicted. The Ex Post Facto Clause of

the Constitution prohibits any law that increases the punishment for a crime beyond the

punishment prescribed for the crime when it was committed. California Dept. of

Corrections v. Morales,

,

,

(1995). The

issue in ex post facto cases involves whether the amendment to a particular law

“produces a sufficient risk of increasing the measure of punishment attached to the Richland County, Case No. 2023 CA 0062 6

covered crimes.” Shabazz v. Gabry,

(6th Cir. 1997), cert denied,

,

,

(1998).

{¶14} Under R.C. 2967.03, parole decisions are discretionary. State ex rel. Blake

v. Shoemaker,

,

(1983). In State ex rel. Henderson v.

Ohio Dept. of Rehab. and Corr.,

,

, the Ohio Supreme

Court held the application of new administrative rules that changed an inmate’s parole

eligibility date did not constitute an ex post facto imposition of punishment.

. The

Court reasoned because the inmate had no constitutional right to parole, the inmate had

no similar right to earlier consideration for parole.

{¶15} Further, in State ex rel. Bealler v. Ohio Adult Parole Auth.,

,

(2001), the Ohio Supreme Court specifically held that a prisoner has

no right to rely on the parole guidelines in effect prior to his parole hearing date, and, thus,

any application of amended parole guidelines are not retroactively applied ex post facto.

Id. at ¶ 37.

{¶16} “Simply put, an inmate has no vested interest in any particular set of parole

guidelines, regulations, or matrices which assist the Parole Board in exercising its

discretion, and changes in those matters do not impair any rights enjoyed by state

prisoners pursuant to the United States Constitution.” (Citations omitted.) State ex rel.

Harris v. Hageman, 10th Dist. Franklin No. 10AP-979,

, ¶ 15.

{¶17} Here, Petitioners were not deprived of any protected liberty interest when

the Ohio Parole Board used guidelines different than those in effect at the time they

committed their crimes. Because there is no ex post facto violation Petitioners cannot

state a claim for habeas relief. Richland County, Case No. 2023 CA 0062 7

IV. CONCLUSION

{¶18} For the foregoing reasons, we grant Respondent’s Motion to Dismiss under

Civ.R.12(B)(6). Petitioners cannot state a claim entitling them to habeas relief.

{¶19} 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. See Civ.R. 58(B).

{¶20} MOTION TO DISMISS GRANTED.

{¶21} CAUSE DISMISSED.

{¶22} COSTS TO PETITIONERS.

{¶23} IT IS SO ORDERED.

By: Wise, J.

Gwin, P. J., and

King, J., concur.

JWW/ac 0124