establishing two-part test for determining whether APA delay in holding parole revocation hearing entitles alleged violator to habeas relief
How later courts described this case
- establishing two-part test for determining whether APA delay in holding parole revocation hearing entitles alleged violator to habeas relief
Written by the judges who cited it.
The opinion
Wright, J.,
concurring. I concur separately to address the central issue raised by the parties and determined by the court of appeals. The question to be decided is whether a writ of habeas corpus is the proper method by which to challenge the action (or inaction) of the Ohio Adult Parole Authority (“authority”). Only upon the resolution of this question may the court determine whether appellee was entitled to the writ under the circumstances of this case.
The issuance of a writ is appropriate when a parolee is being held pursuant to arrest by the parole officer and the authority fails to determine within a reasonable time whether the parolee has violated the conditions of his parole. If the authority fails to make such a determination within a reasonable time, such parolee “shall be released from custody under the same terms and conditions of his original * * * parole.” R.C. 2967.15. A prisoner in this situation is not being held pursuant to a court order and in many cases is in jail pursuant to a warrantless arrest.
The issuance of the writ of habeas corpus is inappropriate when, as in the present case, the parolee has waived his on-site preliminary hearing, is already being held in lawful custody pursuant to pending criminal charges and has failed to post bond. When a person is in the custody of an officer by virtue of a judgment or order of a court of record, and the court had jurisdiction to make the order, a discharge from custody by the writ of habeas corpus will not be allowed. In re Burson (1949), 152 Ohio St. 375 [ 40 O.O. 391 ]; Stahl v. Shoemaker (1977), 50 Ohio St. 2d 351 [ 4 O.O.3d 485 ].
In this case, because the appellee was detained pursuant to the valid order of a court with proper jurisdiction, he is not entitled to the writ of habeas corpus. Under these circumstances a writ of mandamus is the appellee’s only remedy to compel the authority to hold a parole revocation hearing.
Accordingly, I concur in the court’s judgment only.