Sullivan v. Bunting
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Appellant, who was incarcerated, petitioned for a writ of habeas corpus, claiming (1) the Adult Parole Authority improperly revoked his parole, and (2) the evidence obtained by his parole officer's search of his e-mail account constituted a criminal act, and the evidence obtained from the search could not be used to revoke his parole. The court of appeals dismissed Appellant's habeas corpus petition. The Supreme Court affirmed, holding (1) Appellant's parole was properly revoked; (2) the evidence obtained by Appellant's parole officer's search was lawfully obtained; and (3) habeas corpus is generally not available to challenge parole conditions that allegedly restrained a petitioner's liberty.
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[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Sullivan v. Bunting, Slip Opinion No. 2012-Ohio-3923.] NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published. SLIP OPINION NO. 2012-OHIO-3923 SULLIVAN, APPELLANT, v. BUNTING, WARDEN, APPELLEE. [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Sullivan v. Bunting, Slip Opinion No. 2012-Ohio-3923.] Habeas corpus Writ available only to enforce right to immediate release Writ unavailable to challenge conditions of parole New hearing, not release, is remedy for violation of due process in parole revocation. (No. 2012-0601 Submitted August 22, 2012 Decided September 5, 2012.) APPEAL from the Court of Appeals for Marion County, No. 9-12-02. __________________ Per Curiam. {¶ 1} We affirm the judgment of the court of appeals dismissing the petition of appellant, James Sullivan, for a writ of habeas corpus. Habeas corpus is proper in the criminal context only if the petitioner is entitled to immediate release from prison or some other physical confinement. Scanlon v. Brunsman, 112 Ohio St.3d 151, 2006-Ohio-6522, 858 N.E.2d 411, ¶ 4. Sullivan s prison sentence has not expired, and he has no inherent or constitutional right to be SUPREME COURT OF OHIO released before its expiration. Hunt v. Sheldon, 127 Ohio St.3d 14, 2010-Ohio4991, 935 N.E.2d 846, ¶ 1. {¶ 2} For his claim that the Adult Parole Authority improperly revoked his parole, Sullivan cites no authority supporting release from prison based on a misstatement in the revocation order concerning when he was most recently released on parole. And insofar as Sullivan claims a violation of his due process rights, [a]s long as an unreasonable delay has not occurred, the remedy for noncompliance with the Morrissey [v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)] parole-revocation due process requirements is a new hearing, not outright release from prison. State ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 188, 652 N.E.2d 746 (1995). Nor did an unreasonable delay occur before he was afforded a constitutionally compliant parole-revocation hearing. {¶ 3} Moreover, the evidence submitted in the court of appeals established that Sullivan agreed to the pertinent parole conditions, he violated them, he received notification of his parole-revocation hearing, he admitted that he had violated one of his parole conditions and that the evidence introduced at the hearing established that he had violated another parole condition, and his parole was properly revoked. {¶ 4} Furthermore, insofar as Sullivan claims that the evidence obtained by his parole officer s search of his e-mail account constituted a criminal act and that evidence obtained from the search could not be used to revoke his parole, he is mistaken. As a condition of his parole, Sullivan agreed to warrantless searches of his person, motor vehicle, or residence at any time and acknowledged that pursuant to R.C. 2967.131, officers of the Adult Parole Authority could conduct warrantless searches of his personal property or property that he had been given permission to use. See R.C. 2967.131(C). 2 January Term, 2012 {¶ 5} Finally, habeas corpus is generally not available to challenge parole conditions that allegedly restrained a petitioner s liberty. See State ex rel. Smirnoff v. Greene, 84 Ohio St.3d 165, 168, 702 N.E.2d 423 (1998). {¶ 6} Therefore, the court of appeals properly dismissed Sullivan s habeas corpus petition, and we affirm that judgment. Judgment affirmed. O CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur. __________________ James D. Sullivan, pro se. Mike DeWine, Attorney General, and Gregory T. Hartke, Assistant Attorney General, for appellee. ______________________ 3
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