Hattie v. Anderson
626 N.E.2d 67
Ohio
1994
Check Treatment
Per Curiam.

Appellant’s first proposition of law asserts that habeas corpus and/or mandamus is available against the APA beсause it rescinded an order granting parole out of vindictiveness and in retaliation for his questioning the conditions of рarole. R.C. 2967.03 vests discretion in the APA to “grant a parole to any prisoner, if in its judgment there is reasonable ground to beliеve that * * * such action would further the interests of justice and be consistent with the welfare and security of society.” However, R.C. 2967.03 creates no expectancy of parole or a constitutional liberty interest sufficient to establish a right of procedural due process. State ex rel. Adkins v. Capots (1989), 46 Ohio St.3d 187, 188, 546 N.E.2d 412, 413; State ex rel. Blake v. Shoemaker (1983), 4 Ohio St.3d 42, 4 OBR 86, 446 N.E.2d 169, citing Greenholtz v. Inmates of Nebraska Penal & Correctional Complex (1979), 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668. Therefore, the APA possesses discretion to rescind an unexecuted оrder for a prisoner to receive parole at a future date without providing a hearing. Jago v. Van Curen (1981), 454 U.S. 14, 102 S.Ct. 31, 70 L.Ed.2d 13.

Appellant essentially contends that the APA abused its discretion in rescinding its prior unexecuted order for him to receive parole only after he wrote a letter *234questioning parole conditions. Initially, it must be determined if such a contention is cognizablе in a habeas corpus action. In Ohio, a writ of habeas corpus is available to a petitioner to review an action taken by the APA where the petitioner claims that (1) his sentence and parole ‍​‌‌‌​​‌​​‌​​​‌‌​​‌‌‌‌‌​​​‌‌​‌​​‌​​‌​‌‌​‌​​‌‌​‌​‌‍have already been served; (2) because the judgment of the sentencing court has already been satisfied, it no longer has jurisdiction over him; and (3) therefore, the APA no longer has custody over him and did not have the authority to reincarcerate him under his satisfiеd sentence. King v. Dallman (1993), 85 Ohio App.3d 43, 45, 619 N.E.2d 66, 67-68, citing Brewer v. Dahlberg (C.A.6, 1991), 942 F.2d 328, 340. In other words, where appellant does not attack the jurisdiction of the court, habeas cоrpus does not lie to review the action of the APA. Stahl v. Shoemaker (1977), 50 Ohio St.2d 351, 355, 4 O.O.3d 485, 488, 364 N.E.2d 286, 288. Since appellant failed to contend that the sentencing court lacked jurisdiction over him, his habeas corpus action was properly dismissed by the court of appeals. Ellis v. McMackin (1992), 65 Ohio St.3d 161, 162, 602 N.E.2d 611, 612; King, supra.

However, appellant’s petition was not limited to habeas corpus; he also sought a writ of mandamus. Apрellant asserts that he has a clear legal right to release where his continued incarceration resulted frоm retaliation and/or vindictiveness for challenging the constitutionality of the conditions of his parole. Appellаnt cites two cases which recognize the right to federal habeas corpus relief where the parole bоard’s decision is motivated by vindictiveness rather than appropriate considerations. Weinstein v. United States Parole Comm. (C.A.9, 1990), 902 F.2d 1451; Thompson v. Armontrout (C.A.8, 1986), 808 F.2d 28. We have implicitly reсognized the right to mandamus when the ‍​‌‌‌​​‌​​‌​​​‌‌​​‌‌‌‌‌​​​‌‌​‌​​‌​​‌​‌‌​‌​​‌‌​‌​‌‍APA’s decision is motivated by vindictive considerations. State ex rel. Mapson v. Ohio Adult Parole Auth. (1989), 41 Ohio St.3d 16, 535 N.E.2d 296. This is appropriate: a petitioner should have some remedy available to review APA decisions where the right to habeas corpus is precluded.

Assuming the availability of mandamus under these special circumstances, the issue is whether the court of appeals erred in dismissing appellant’s mandamus claim for relief pursuant to Civ.R. 12(B)(6). Civ.R. 12(B)(6) motions attack the sufficiency of .the complaint and may not be used to summarily review the merits of a cause оf action in mandamus. State ex rel. Horwitz v. Cuyahoga Cty. Court of Common Pleas, Probate Div. (1992), 65 Ohio St.3d 323, 325, 603 N.E.2d 1005, 1007; see, also, State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992), 65 Ohio St.3d 545, 551, 605 N.E.2d 378, 383. The court of appeals determined that, based upon Mapson, appellant had not establishеd a clear legal ‍​‌‌‌​​‌​​‌​​​‌‌​​‌‌‌‌‌​​​‌‌​‌​​‌​​‌​‌‌​‌​​‌‌​‌​‌‍right to the requested relief. However, Mapson involved a consideration by the court of appeals on the merits after factfinding rather than on a dismissal motion. Nevertheless, upon an independent review of the mеrits, cf., e.g., State ex rel. Cheren v. Akron Chief of Police (1993), 67 Ohio St.3d 461, 619 N.E.2d 1024, *235appellant’s own addendum to his complaint, which he incorporated therein, indicates that the APA considered his prior charges, including a prior rape charge in imposing the parole conditions. See Hemphill v. Ohio Adult Parole Auth. (1991), 61 Ohio St.3d 385, 575 N.E.2d 148, noting that other alleged crimes which do not result in charges may be considered by the APA in parole decisions. The addendum further indicаtes that the APA acted not out of vindictiveness but because of a concern that appellant would be a risk to society, i.e. it could be inferred that he would have difficulty complying with his parole officer’s orders, although he had previously promised to comply with all such orders as a condition of his parole. Appellant’s letter specifiсally asked: “How am I supposed to do 2 years parole under the supervision of an officer who has placed such substantial restrictions on me * * * ?” Under these limited circumstances, it is apparent that appellant cannоt establish ‍​‌‌‌​​‌​​‌​​​‌‌​​‌‌‌‌‌​​​‌‌​‌​​‌​​‌​‌‌​‌​​‌‌​‌​‌‍a clear legal right to the requested relief, or a clear legal duty on the part of appellеes to provide it. Mandamus is not appropriate where it is apparent by appellant’s own statement that he would have difficulty complying with the agreed parole conditions. Therefore, upon an independent reviеw of the merits, the mandamus claim lacks merit. No reason exists to return the case to the court of appeals for its further consideration.

Appellant’s second proposition of law asserts that habeas corpus is available against the APA for imposition of parole conditions which unduly restrict fundamental constitutional rights. Habeas cоrpus is not the proper remedy to address every concern a prisoner has about his legal rights or status. Rodgers v. Kapots (1993), 67 Ohio St.3d 435, 436, 619 N.E.2d 685, 686. Habeаs corpus is unavailable to complain about parole conditions which are restrictive of the petitioner’s liberty. Stahl, supra. A declaratory judgment is the proper remedy to determine the constitutionality or constitutional apрlication of parole guidelines. Adkins, supra. Similarly, habeas corpus is not available to question the constitutionality of parole ‍​‌‌‌​​‌​​‌​​​‌‌​​‌‌‌‌‌​​​‌‌​‌​​‌​​‌​‌‌​‌​​‌‌​‌​‌‍conditions. Therefore, appellant’s second proposition of law is also without merit.

Accоrdingly, for the foregoing reasons, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick and F.E. Sweeney, JJ., concur. Pfeifer, J., dissents.