Opinion
No. 36423
Decided July 13, 1960.
Criminal law — Pardon and parole commission — Prisoner paroled to another state for trial — Declared parole violator — Habeas corpus not available to review, when.
IN HABEAS CORPUS.
The petitioner, Barnes, who is seeking his release from the Ohio Penitentiary by this proceeding in habeas corpus instituted in this court, was indicted for forgery, was represented by counsel, pleaded guilty, and was sentenced to the penitentiary for a period of from one to twenty years.
Thereafter petitioner was paroled to the state of Indiana where he was tried and convicted of the crime of forgery, sentenced to the Indiana State Prison and ordered on probation to run concurrently with petitioner's probation in Ohio. The state of Indiana refused to accept petitioner as a parolee of Ohio and required him to return to the Ohio Penitentiary, from which institution he was again released on parole, such parole being confined to Ohio. Petitioner then went to the state of Minnesota, was declared an Ohio parole violator and was returned to the Ohio Penitentiary. His parole was revoked.
Petitioner contends that the mittimus under which he is being confined (for the crime of forgery committed in Ohio) has ceased to be a valid or legal cause for imprisonment by reason of the action of the Ohio Pardon and Parole Commission in surrendering custody of petitioner to the sheriff of Noble County, Indiana, for the purpose of trial in that state, and that such surrender released petitioner from the requirement of serving the remaining portion of his sentence.
Petitioner alleges also in his petition that he pursued habeas corpus actions in both the Court of Common Pleas and Court of Appeals; that in each case the court refused petitioner an opportunity to lay a foundation of evidence which was essential to a successful prosecution and defense of his action and to the taking of an appeal; and that the issues and allegations in each of such actions were substantially similar to those in the instant case.
The prayer of the petition is that a writ be issued requiring petitioner to be produced at the hearing and that he be released from further confinement.
The respondent, Warden of the Ohio Penitentiary, filed a return of writ and brief opposing the relief sought.
Mr. Harry S. Barnes, in propria persona. Mr. Mark McElroy, attorney general, and Mr. Aubrey Wendt, for respondent.
The matters presented by petitioner are not properly determinable in a habeas corpus proceeding. In re Varner, 166 Ohio St. 340; Rigg v. Correction Department, Parole Board Div., State of Ohio, 170 Ohio St. 347.
Petitioner remanded to custody.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.