Hughley v. Duffey

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[Cite as Hughley v. Duffey, 2009-Ohio-5999.] COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT KEVIN HUGHLEY Petitioner JUDGES: Hon. Sheila G. Farmer, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vsCase No. 09CA00045 WARDEN SHERI DUFFEY, ET AL. Respondents OPINION CHARACTER OF PROCEEDING: Writ of Habeas Corpus JUDGMENT: Petition Denied DATE OF JUDGMENT ENTRY: November 9, 2009 APPEARANCES: For Petitioner For Respondent KEVIN HUGHLEY, PRO SE c/o Southeastern Correctional Institution 5900 B.I.S Road Lancaster, Ohio 43130 RICHARD CORDRAY Attorney General of Ohio BY: M. SCOTT CRISS Assistant Attorney General Criminal Justice Section 150 E. Gay Street, 16th Floor Columbus, Ohio 43215 Fairfield County, Case No. 09CA00045 2 Farmer, P.J. {¶1} Petitioner, Kevin Hughley, has filed a Petition for Writ of Habeas Corpus alleging he is entitled to immediate release from imprisonment because Petitioner successfully completed an intensive prison program ( IPP ). Respondent has filed a Motion to Dismiss averring Petitioner was discharged from the program prior to its successful completion. Respondent further suggests Petitioner has failed to state a claim upon which relief may be granted. {¶2} R.C. 5120.032(B)(1)(b) grants the department the power to reduce a prison term upon successful completion of the IPP. Ohio Adm.Code 5120-11-10(B) confirms this: The department shall terminate the stated prison term of a prisoner upon the prisoner's successful completion of a ninety-day period in an intensive program prison. In other words, there is a conditional right to be released. The condition is successful completion of the IPP. {¶3} The Supreme Court has stated, There is no constitutional or inherent right * * * to be conditionally released before the expiration of a valid sentence. *638 State ex rel. Hattie v. Goldhardt (1994), 69 Ohio St.3d 123, 125, 630 N.E.2d 696, 698, quoting Greenholtz v. Inmates of Nebraska Penal & Correctional Complex (1979), 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668, 675. State ex rel. Carrion v. Ohio Adult Parole Authority 80 Ohio St.3d 637, 638, 687 N.E.2d 759, 760). {¶4} Petitioner has not demonstrated his successful completion of an IPP, therefore, Petitioner s prison sentence is not required to be terminated pursuant to OAC 5120-11-10(B). Fairfield County, Case No. 09CA00045 {¶5} 3 Finally, Petitioner remains incarcerated pursuant to a valid sentence which has not yet expired. As the Supreme Court has held, [H]abeas corpus is generally available only when the petitioner's maximum sentence has expired and he is being held unlawfully. Morgan v. Ohio Adult Parole Auth. (1994), 68 Ohio St.3d 344, 346, 626 N.E.2d 939, 941. Heddleston v. Mack 84 Ohio St.3d 213, 213-214, 702 N.E.2d 1198, 1198 (Ohio,1998). {¶6} Because Petitioner remains incarcerated pursuant to a valid sentence which has not yet expired, habeas corpus will not lie. The Petition is denied. {¶7} PETITION DENIED. {¶8} COSTS TO PETITIONER. {¶9} IT IS SO ORDERED. By: Farmer, P.J. Hoffman, J. and Wise, J. concur _s/ Sheila G. Farmer__________________ HON. SHEILA G. FARMER _s/ William B. Hoffman________________ HON. WILLIAM B. HOFFMAN _s/ John W. Wise_____________________ HON. JOHN W. WISE Fairfield County, Case No. 09CA00045 4 IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT KEVIN HUGHLEY Petitioner -vsWARDEN SHERI DUFFEY, ET AL. Respondents : : : : : : : : : JUDGMENT ENTRY Case No. 09CA00045 For the reasons stated in our accompanying Memorandum-Opinion, the Petition for Writ of Habeas Corpus is denied. PETITION DENIED. COSTS TO PETITIONER. IT IS SO ORDERED. _s/ Sheila G. Farmer__________________ HON. SHEILA G. FARMER _s/ William B. Hoffman________________ HON. WILLIAM B. HOFFMAN _s/ John W. Wise_____________________ HON. JOHN W. WISE

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