[Cite as Calo v. Black, 2024-Ohio-329.]
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., 72 Ohio St.3d
94, 95, 647 N.E.2d 788 (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, 117 Ohio St.3d 470, 2008-Ohio-1443, 884
N.E.2d 1067, ¶ 10.
{¶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, 2005-Ohio-2383, ¶ 5. 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, 2015-Ohio-1394, ¶ 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, 157 Ohio St.3d 384, 2019-Ohio-4113,
137 N.E.3d 71, ¶ 6, citing R.C. 2725.01; State ex rel. Cannon v. Mohr, 155 Ohio St.3d
213, 2018-Ohio-4184, 120 N.E.3d 776, ¶ 10. “[A]n inmate is not usually eligible for habeas
relief until his maximum sentence has expired.” [Citation omitted.] Pence v. Bunting, 143
Ohio St.3d 532, 2015-Ohio-2026, 40 N.E.3d 1058, ¶ 9. Finally, habeas corpus is not
available when an adequate remedy at law exists. Billiter v. Banks, 135 Ohio St.3d 426,
2013-Ohio-1719, 988 N.E.2d 556, ¶ 8. (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, 85 Ohio St.3d 348, 349, 708 N.E.2d 697 (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, 50 Ohio St.2d 351, 354, 364
N.E.2d 286 (1977).
{¶10} Petitioners have no constitutional right to parole. State ex rel. Henderson v.
Ohio Dept. of Rehab. & Corr., 81 Ohio St.3d 267, 690 N.E.2d 887. As such, there is no
constitutional or statutory right to earlier consideration of parole. State ex rel. Vaughn v.
Ohio Adult Parole Auth., 85 Ohio St.3d 378, 379, 708 N.E.2d 720 (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.
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[Cite as Calo v. Black, 2024-Ohio-329.]
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., 72 Ohio St.3d
94, 95, 647 N.E.2d 788 (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, 117 Ohio St.3d 470, 2008-Ohio-1443, 884
N.E.2d 1067, ¶ 10.
{¶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, 2005-Ohio-2383, ¶ 5. 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, 2015-Ohio-1394, ¶ 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, 157 Ohio St.3d 384, 2019-Ohio-4113,
137 N.E.3d 71, ¶ 6, citing R.C. 2725.01; State ex rel. Cannon v. Mohr, 155 Ohio St.3d
213, 2018-Ohio-4184, 120 N.E.3d 776, ¶ 10. “[A]n inmate is not usually eligible for habeas
relief until his maximum sentence has expired.” [Citation omitted.] Pence v. Bunting, 143
Ohio St.3d 532, 2015-Ohio-2026, 40 N.E.3d 1058, ¶ 9. Finally, habeas corpus is not
available when an adequate remedy at law exists. Billiter v. Banks, 135 Ohio St.3d 426,
2013-Ohio-1719, 988 N.E.2d 556, ¶ 8. (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, 85 Ohio St.3d 348, 349, 708 N.E.2d 697 (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, 50 Ohio St.2d 351, 354, 364
N.E.2d 286 (1977).
{¶10} Petitioners have no constitutional right to parole. State ex rel. Henderson v.
Ohio Dept. of Rehab. & Corr., 81 Ohio St.3d 267, 690 N.E.2d 887. As such, there is no
constitutional or statutory right to earlier consideration of parole. State ex rel. Vaughn v.
Ohio Adult Parole Auth., 85 Ohio St.3d 378, 379, 708 N.E.2d 720 (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, 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (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, 123 F.3d 909, 913 (6th Cir.1997), cert denied, 522
U.S. 1120, 118 S.Ct. 1061, 140 L.Ed.2d 122 (1998).
{¶14} Under R.C. 2967.03, parole decisions are discretionary. State ex rel. Blake
v. Shoemaker, 4 Ohio St.3d 42, 43, 446 N.E.2d 169 (1983). In State ex rel. Henderson v.
Ohio Dept. of Rehab. and Corr., 81 Ohio St.3d 267, 690 N.E.2d 887, 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. Id. at 268. The
Court reasoned because the inmate had no constitutional right to parole, the inmate had
no similar right to earlier consideration for parole. Id.
{¶15} Further, in State ex rel. Bealler v. Ohio Adult Parole Auth., 91 Ohio St.3d
36, 740 N.E.2d 1100 (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, 2013-Ohio-669, ¶ 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