State ex rel. Crigger v. Ohio Adult Parole Auth. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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THE STATE EX REL. CRIGGER, APPELLANT, v. OHIO ADULT PAROLE AUTHORITY ET
AL., APPELLEES.
[Cite as State ex rel. Crigger v. Ohio Adult Parole Auth. (1998), ___ Ohio St.3d
___.]
Habeas corpus to compel relator's immediate release from custody -- Petition
dismissed, when.
(No. 97-2519 -- Submitted June 10, 1998 -- Decided July 1, 1998.)
APPEAL from the Court of Appeals for Ross County, No. 97CA2334.

In September 1997, appellant, Robert Crigger, filed a petition in the Court
of Appeals for Ross County for a writ of habeas corpus to compel appellees, Ohio
Adult Parole Authority ("APA") and the warden of Ross Correctional Institution,
to immediately release him from custody.

Crigger alleged that in June 1988, the Madison County Common Pleas
Court sentenced him to a prison term of three to fifteen years for a criminal
conviction which he did not specify in the allegations. In August 1995, the APA
paroled Crigger. In March 1996, he was arrested on charges of violating his
parole, and in April 1996, following parole revocation proceedings, the hearing
officer imposed parole violation sanctions on Crigger which were more severe
than his previous parole conditions. In May 1996, Crigger was again arrested for
violating parole, and in July 1996, following a revocation proceeding, the APA
revoked his parole.

In his petition, Crigger claimed that he was entitled to immediate release
from prison because both his April 1996 parole revocation proceedings and the
parole revocation proceedings following his rearrest in May 1996 violated
constitutional provisions, including due process and ex post facto imposition of
punishment. Crigger attached a copy of the APA's parole revocation order to his

petition but did not attach either his 1988 sentencing entry or any documentation
concerning the APA's April 1996 parole revocation proceedings.

Crigger requested in his petition that the court of appeals waive any filing
fees and costs. He stated that as of June 17, 1997, he had a balance in his inmate
account of $25.60 and therefore did not have the necessary funds to pay fees and
costs. An attached certification by the prison cashier, however, reflected a balance
of $97.34 in Crigger's inmate account twelve days earlier. In addition, the prison
cashier certified that Crigger's average monthly deposits were $139.29. The court
of appeals ordered the institution cashier to remit $50 from Crigger's inmate
account "in accordance with O.R.C. 2969.22." Crigger then again moved to
waive the filing fee and costs, this time asserting that R.C. 2969.22 et seq. did not
apply to his action because, inter alia, it did not constitute a civil action for
purposes of those statutes.

The court of appeals granted the APA's motion to dismiss Crigger's
petition. It held that he had not attached all of his pertinent commitment papers
and that he had not stated with particularity why he was entitled to a writ of habeas
corpus. The court of appeals did not consider Crigger's reply to the APA's
dismissal motion prior to its judgment, and based on R.C. 2969.22 et seq., it
overruled Crigger's motion to waive filing fees and costs.

This cause is now before the court upon an appeal as of right.
__________________

Robert Crigger, pro se.
__________________

Per Curiam.
Waiver of Fees

2

Crigger initially asserts that the court of appeals erred by assessing $50 in
filing fees against him. He contends that the court of appeals improperly applied
R.C. 2969.22 et seq. because these statutes do not apply to habeas corpus actions
and R.C. 2725.28 precluded the court from requiring that he pay the $50 filing
fee.

However, Crigger's own attachment to his affidavit of waiver and indigency
indicated that the prison cashier certified that he had funds in his account to cover
the fee. Crigger was not indigent, and we therefore need not address his
contention that R.C. 2969.22 et seq. do not apply to habeas corpus actions. Also,
since Crigger did not raise the applicability of R.C. 2725.28 in the court of
appeals, we need not consider that issue on appeal. State v. Awan (1986), 22 Ohio
St.3d 120, 22 OBR 199, 489 N.E.2d 277, syllabus.
Opportunity to Respond to Motion to Dismiss

Crigger next asserts that the court of appeals erred by granting the APA's
motion to dismiss before affording him the opportunity to respond. R.C. Chapter
2725, however, which prescribes a basic, summary procedure for instituting
habeas corpus actions, does not require service of the petition before dismissal if
the petition does not contain a facially valid claim. State ex rel. Carrion v. Ohio
Adult Parole Auth. (1998), 80 Ohio St.3d 637, 638, 687 N.E.2d 759, 760; Pegan v.
Crawmer (1995), 73 Ohio St.3d 607, 608-609, 653 N.E.2d 659, 661. Since
Crigger's petition was not facially valid, see below, and the court of appeals could
have dismissed it immediately sua sponte, there was no prejudice in not
considering Crigger's response to the motion to dismiss.
Habeas Corpus

3

Crigger asserts in his remaining propositions of law that the court of appeals
erred in dismissing his habeas corpus petition. For the following reasons,
Crigger's contentions are meritless.

First, while Crigger is correct that his sentencing entry is irrelevant to his
complaint about his current confinement, see Brown v. Rogers (1995), 72 Ohio
St.3d 339, 341, 650 N.E.2d 422, 423, he failed to attach anything to his petition
concerning the April 1996 parole revocation proceedings and the alleged increased
parole sanctions that he challenges in his petition for a writ of habeas corpus.
Therefore, we have nothing but the bare allegations of Crigger's petition
concerning his claimed entitlement to a writ of habeas corpus based on the April
1996 proceedings. He did not attach all of his pertinent commitment papers. See
State ex rel. Lake v. Anderson (1997), 80 Ohio St.3d 491, 492, 687 N.E.2d 453,
454; Workman v. Shiplevy (1997), 80 Ohio St.3d 174, 174-175, 685 N.E.2d 231,
232.

Second, except for his claim of unreasonable delay in conducting parole
revocation proceedings, Crigger's contentions that the subsequent parole
revocation proceedings denied him due process of law under Morrissey v. Brewer
(1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, and resulted in ex post facto
imposition of punishment are not cognizable in habeas corpus. See State ex rel.
Jackson v. McFaul (1995), 73 Ohio St.3d 185, 188, 652 N.E.2d 746, 749 ("As
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. Henderson v. Ohio Dept. of
Rehab. & Corr. (1998), 81 Ohio St.3d 267, 268, 690 N.E.2d 887, 888 (because
there is no constitutional or statutory right to parole, change in parole eligibility
date does not constitute ex post facto imposition of punishment).

4

Third, Crigger did not state with sufficient particularity his entitlement to
extraordinary relief in habeas corpus. While he alleged in a conclusory manner
that the APA did not afford him a parole revocation hearing in a timely fashion, he
did not state with sufficient particularity prejudice from the APA's alleged actions.
See Jackson, supra, 73 Ohio St.3d at 188, 652 N.E.2d at 749, holding that under
the applicable test for unreasonable delay, prejudice receives substantial emphasis,
and that the most serious component of prejudice is the possibility that delay will
impair the accused parole violator's defense at his final parole revocation hearing.
Here, while Crigger alleged that he "lost the ability to present witnesses" as a
direct result of the delay, he did not specify why he could not present affidavits
from these witnesses and what these witnesses would have testified about
concerning his later parole revocation proceedings following his rearrest in May
1996. Crigger did not even specify the nature of his alleged parole violations,
which his witnesses allegedly would have refuted.

Based on the foregoing, the court of appeals properly dismissed Crigger's
habeas corpus petition. Accordingly, we affirm the judgment of the court of
appeals.
Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.

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