Opinion
No. 38791
Decided June 24, 1964.
Habeas corpus — Not available, when — Petitioner not entitled to immediate relief — Where subject to detention under earlier conviction — Issues available on appeal.
IN HABEAS CORPUS.
This is an action in habeas corpus instituted in this court. Petitioner, Logan Peter Rollins, in 1957, pleaded guilty to the unlawful possession of a hypodermic needle for the use of habit-forming drugs. He was referred to the adult probation department and placed under bond. In June 1957, he jumped his bond and was not reapprehended until 1959. In June 1959, he was sentenced to the Ohio State Reformatory. Petitioner was paroled on July 19, 1961. In early 1962, he was indicted for giving a false name and address in purchasing an exempted narcotic drugs, paregoric. Petitioner waived a jury and, while represented by counsel, was tried to and found guilty by the court. In April 1962, he was again sentenced to the reformatory and subsequently was transferred to the Ohio Penitentiary and then to the London Correctional Institution. Petitioner was declared a parole violator on his first conviction in May 1962, and a wanted detainer was placed on him.
Mr. Logan Peter Rollins, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
Petitioner in this action in habeas corpus is attacking only his 1962 conviction. Petitioner is still subject to detention under his 1957 conviction. Habeas corpus lies only if the petitioner is entitled to immediate release upon the determination that the claim urged in the action is well founded. Petitioner, in the present case, would not be entitled to immediate release inasmuch as he is still subject to detention on his 1957 conviction. Thus, habeas corpus does not lie. Page v. Green, Supt., 174 Ohio St. 178; and McNally v. Hill, 293 U.S. 131. Errors which petitioner wishes to urge in relation to his 1962 conviction under such circumstances must be raised by appeal.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.