Tucker v. McAninch

Ohio Supreme Court

Tucker v. McAninch

1998 Ohio 220, 82 Ohio St. 3d 423

CourtOhio Supreme Court

DecidedJuly 29, 1998

Docket1997-2618

StatusPublished

This text of 1998 Ohio 220 (Tucker v. McAninch) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Tucker v. McAninch, 1998 Ohio 220, 82 Ohio St. 3d 423 (Ohio 1998).

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[This opinion has been published in Ohio Official Reports at 82 Ohio St.3d 423.]

TUCKER, APPELLANT, v. MCANINCH ET AL., APPELLEES. [Cite as Tucker v. McAninch, 1998-Ohio-220.] Habeas corpus to compel relator’s immediate release from prison—Petition dismissed, when. (No. 97-2618—Submitted June 24, 1998—Decided July 29, 1998.) APPEAL from the Court of Appeals for Ross County, No. 97 CA 2339. __________________ {¶ 1} In 1983, appellant, Douglas Tucker, was convicted of rape and aggravated burglary and sentenced to concurrent prison terms of seven to twenty- five years and four to twenty-five years. {¶ 2} In 1997, Tucker filed a petition in the Court of Appeals for Ross County for a writ of habeas corpus to compel his immediate release from prison. Tucker claimed that appellee Ohio Adult Parole Authority (“APA”) had revoked his parole without complying with the minimum due process standards specified in Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. Although Tucker attached a copy of his 1983 conviction, he did not attach any parole revocation decision. Appellees, the APA and Tucker’s prison warden, filed a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted. {¶ 3} The court of appeals granted appellees’ motion and dismissed Tucker’s habeas corpus petition. {¶ 4} This cause is now before this court upon an appeal as of right. __________________ Douglas Tucker, pro se. __________________ Per Curiam. SUPREME COURT OF OHIO

{¶ 5} We affirm the judgment of the court of appeals for the following reasons. First, Tucker did not attach commitment papers pertinent to his claim challenging the APA’s parole revocation. State ex rel. Brantley v. Ghee (1997), 80 Ohio St.3d 287, 288, 685 N.E.2d 1243, 1244. Second, “ ‘[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. Carrion v. Ohio Adult Parole Auth. (1998), 80 Ohio St.3d 637, 638, 687 N.E.2d 759, 760, quoting State ex rel. Jackson v. McFaul (1995), 73 Ohio St.3d 185, 188, 652 N.E.2d 746, 749. Here, as in Carrion, the petitioner did not allege any unreasonable delay. Judgment affirmed. MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur. __________________

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[This opinion has been published in Ohio Official Reports at 82 Ohio St.3d 423.]

TUCKER, APPELLANT, v. MCANINCH ET AL., APPELLEES. [Cite as Tucker v. McAninch, 1998-Ohio-220.] Habeas corpus to compel relator’s immediate release from prison—Petition dismissed, when. (No. 97-2618—Submitted June 24, 1998—Decided July 29, 1998.) APPEAL from the Court of Appeals for Ross County, No. 97 CA 2339. __________________ {¶ 1} In 1983, appellant, Douglas Tucker, was convicted of rape and aggravated burglary and sentenced to concurrent prison terms of seven to twenty- five years and four to twenty-five years. {¶ 2} In 1997, Tucker filed a petition in the Court of Appeals for Ross County for a writ of habeas corpus to compel his immediate release from prison. Tucker claimed that appellee Ohio Adult Parole Authority (“APA”) had revoked his parole without complying with the minimum due process standards specified in Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. Although Tucker attached a copy of his 1983 conviction, he did not attach any parole revocation decision. Appellees, the APA and Tucker’s prison warden, filed a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted. {¶ 3} The court of appeals granted appellees’ motion and dismissed Tucker’s habeas corpus petition. {¶ 4} This cause is now before this court upon an appeal as of right. __________________ Douglas Tucker, pro se. __________________ Per Curiam. SUPREME COURT OF OHIO

{¶ 5} We affirm the judgment of the court of appeals for the following reasons. First, Tucker did not attach commitment papers pertinent to his claim challenging the APA’s parole revocation. State ex rel. Brantley v. Ghee (1997), 80 Ohio St.3d 287, 288, 685 N.E.2d 1243, 1244. Second, “ ‘[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. Carrion v. Ohio Adult Parole Auth. (1998), 80 Ohio St.3d 637, 638, 687 N.E.2d 759, 760, quoting State ex rel. Jackson v. McFaul (1995), 73 Ohio St.3d 185, 188, 652 N.E.2d 746, 749. Here, as in Carrion, the petitioner did not allege any unreasonable delay. Judgment affirmed. MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur. __________________

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