State ex rel. Womack v. Sloan

[Cite as State ex rel. Womack v. Sloan, 2017-Ohio-616.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO ex rel. : PER CURIAM OPINION
JOE RICHARD WOMACK,
:
Petitioner,
: CASE NO. 2015-A-0051
- vs -
:
BRIGHAM SLOAN, WARDEN, et al.,
:
Respondents.
Original Action for Writ of Habeas Corpus.
Judgment: Petition dismissed.
Joe Richard Womack, pro se, PID: A480-111, Lake County Correctional Institution,
P.O. Box 8000, 501 Thompson Road, Conneaut, OH 44030 (Petitioner).
Mike DeWine, Ohio Attorney General, State Office Tower, 30 East Broad Street, 25th
Floor, Columbus, OH 43215 (For Respondents).
PER CURIAM.
{¶1} Petitioner, Joe Richard Womack, seeks a writ of habeas corpus to compel
the Ohio Adult Parole Authority to conduct a new hearing regarding his alleged parole
violation. Respondent, Warden Brigham Sloan of the Lake Erie Correctional Institution,
moves to dismiss on the grounds that the relief requested is not warranted. The motion
to dismiss is granted.
{¶2} Petitioner’s claim for relief is based upon the following allegations: (1) in
April 2014, petitioner was released from a state prison on parole; (2) two weeks later, he
was summoned to a local parole office and required to submit a urine sample; (3) a
preliminary test of the sample indicated that his urine contained buprenorphine; (4) as a
result of the positive test, petitioner was arrested and charged with a parole violation; (5)
petitioner immediately requested that the remainder of the sample be sent to a lab for a
confirmation test, but was informed such a test would not be performed unless he paid
the sum of $35 within three days; (6) since petitioner was indigent, the confirmation test
was never performed; and (7) after a final hearing in June 2014, petitioner’s parole was
revoked, and he is presently incarcerated in Warden Sloan’s facility.
{¶3} Petitioner further asserts that, since he did not take any unapproved drugs
after his release, the results of the confirmation test would have been negative. Thus,
he claims the $35 requirement violated his rights to due process and equal protection.
For his ultimate relief, he requests an order requiring the Adult Parole Authority to hold a
new revocation hearing in which the results of the preliminary test of the sample would
not be admissible.
{¶4} “The revocation of parole implicates constitutional liberty interests, such
that the parolee is entitled to certain due-process protections, among them the right to a
hearing. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).”
Scarberry v. Turner, 139 Ohio St.3d 111, 2014-Ohio-1587, ¶13. When the violation of
the parolee’s due process consists of an unreasonable delay in the revocation hearing,
a writ of habeas corpus can lie to compel the parolee’s release from prison. See State
ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 188, 652 N.E.2d 746 (1995). However, in
all other circumstances, a due process violation will only entitle the parolee to a new
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revocation hearing; thus, since the parolee is not entitled to immediate release, a writ of
habeas corpus will not lie. Id.; Sullivan v. Bunting, 133 Ohio St.3d 81, 2012-Ohio-3923,
975 N.E.2d 999.
{¶5} In responding to Warden Sloan’s motion to dismiss, petitioner expressly
states, consistent with the prayer for relief in his petition, that he did not bring this action
to obtain his immediate release from prison. Instead, he asserts that he only seeks a
new revocation hearing. Pursuant to the foregoing case law, a writ of habeas corpus
cannot be granted for that purpose. Accordingly, petitioner has failed to state a viable
claim for the writ, and the dismissal of his petition is warranted under Civ.R. 12(B)(6).
{¶6} Respondent Sloan’s motion to dismiss is granted, and judgment is hereby
entered in his favor as to the entire amended habeas corpus petition. For the same
reasons, it is the sua sponte order of this court that the amended habeas corpus petition
is also dismissed as to respondent Ohio Adult Parole Authority.
CYNTHIA WESTCOTT RICE, P.J., TIMOTHY P. CANNON, J., THOMAS R. WRIGHT,
J., concur.
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