1998 OHIO 217 - State ex rel. Spann v. Mitchell

[This opinion has been published in Ohio Official Reports at

82 Ohio St.3d 416

.]




 THE STATE EX REL. SPANN, APPELLANT, v. MITCHELL, WARDEN, APPELLEE.
              [Cite as State ex rel. Spann v. Mitchell,

1998-Ohio-217

.]
Habeas corpus to compel relator’s release from prison—Petition dismissed, when.
            (No. 98-58—Submitted June 24, 1998—Decided July 29, 1998.)
     APPEAL from the Court of Appeals for Trumbull County, No. 97-T-0102.
                                  __________________
        {¶ 1} In 1995, following a hearing, appellee Ohio Adult Parole Authority
(“APA”), revoked the parole of appellant, Albert Spann.
        {¶ 2} In 1997, Spann filed a petition in the Court of Appeals for Trumbull
County for a writ of habeas corpus to compel his release from prison. Spann
claimed that under Kellogg v. Shoemaker (C.A.6, 1995),

46 F.3d 503

, the APA had
improperly applied newly enacted administrative rules concerning parole
revocation. Spann further contended that the APA had failed to comply with the
minimum due process requirements for parole-revocation proceedings set forth in
Morrissey v. Brewer (1972),

408 U.S. 471

92 S.Ct. 2593

33 L.Ed.2d 484

.
Appellees, the APA and Spann’s prison warden, filed a motion to dismiss, and
Spann filed a motion for leave to amend his petition. In his motion for leave to
amend, Spann asserted in a conclusory fashion that he was prejudiced by the APA’s
failure to conduct a proper parole revocation hearing within a reasonable time
because “[t]he following witness[es] are no longer available to give testimony in
defense, or mitigation.” Spann, however, did not indicate the witnesses’ names, the
nature of their testimony, or the parole violation charges they would have allegedly
refuted.
{¶ 3} The court of appeals granted appellees’ motion and dismissed the
petition.
{¶ 4} This cause is now before the court upon an appeal as of right.
SUPREME COURT OF OHIO

__________________
Albert Spann, pro se.
__________________
Per Curiam.
{¶ 5} Spann asserts in his propositions of law that the court of appeals erred
in dismissing his habeas corpus petition.
{¶ 6} For the reasons that follow, however, we reject Spann’s assertions and
affirm the judgment of the court of appeals. First, as the court of appeals held,
Kellogg is inapplicable here because Spann received a revocation hearing. See
Kellogg, 46 F.3d at 509. Second, there is no ten-day or sixty-day rule entitling
parolees to habeas corpus relief upon expiration of such period; instead, the
applicable test is whether there has been an unreasonable delay in holding a parole-revocation hearing. See Seebeck v. Zent (1993),

68 Ohio St.3d 109, 111

623 N.E.2d 1195, 1197

. Finally, “[a]s long as an unreasonable delay has not occurred,
the remedy for noncompliance with the Morrissey parole-revocation due process
requirements is a new hearing, not outright release from prison.” State ex rel.
Jackson v. McFaul (1995),

73 Ohio St.3d 185, 188

652 N.E.2d 746, 749

. Spann
failed to allege sufficient facts establishing prejudice. He alleged neither the nature
of his witnesses’ testimony, the reasons why this testimony was no longer available
to him, nor the parole violation charges they would have refuted.
       {¶ 7} Based on the foregoing, the court of appeals properly dismissed
Spann’s petition. Accordingly, the judgment of the court of appeals is affirmed.
                                                                  Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                               __________________




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