Coley v. Alvis

• Decision Date: 06 September 1967
• Docket Number: No. 17477.,17477.
• Citation: 381 F.2d 870
• Parties: Luther Robert COLEY, Petitioner-Appellant, v. Ralph W. ALVIS, Superintendent Lebanon Correctional Institution, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

381 F.2d 870 (1967)

Luther Robert COLEY, Petitioner-Appellant, v. Ralph W. ALVIS, Superintendent Lebanon Correctional Institution, Respondent-Appellee.

No. 17477.

United States Court of Appeals Sixth Circuit.

September 6, 1967.

Luther Robert Coley, in pro. per.

William B. Saxbe, Atty. Gen., Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, for appellee.

Before PHILLIPS, CELEBREZZE, and COMBS, Circuit Judges.

PER CURIAM.

Luther Robert Coley (Appellant) appeals from an order of the District Court denying his application for a writ of habeas corpus. On August 8, 1962, Appellant was indicted by the Grand Jury of Jackson County, Ohio for the crimes of breaking and entering in the night season, and grand larceny. Upon the advice of counsel, Appellant entered a plea of guilty to the charge of grand larceny. The count containing the charge of breaking and entering in the night season was nolled. Appellant was sentenced to the Ohio Reformatory for a period of one to seven years.

On December 22, 1965, Appellant's petition to vacate his sentence was denied. No appeal was taken either from his original conviction or from the denial of his petition to vacate his sentence. Appellant has not collaterally attacked his State Court conviction.

The District Court for the Southern District of Ohio, Western Division, allowed Appellant to proceed in forma pauperis in the prosecution of a writ of habeas corpus.

In his petition for a writ of habeas corpus, Appellant alleges five violations of his constitutional rights, as follows:

1. That he was allowed only five hours counselling with his court appointed attorney before going to trial.

2. That the trial judge denied a continuance to enable adequate preparation for trial.

3. That the trial judge denied the issuance of defense subpoenas.

4. That his plea of guilty was involuntary and obtained under duress.

5. That his court appointed counsel was incompetent.

For failure to exhaust his State administrative remedies, the District Court, on August 30, 1966, entered an Order dismissing his petition for a writ of habeas corpus.

While this appeal was pending, the Ohio Supreme Court, in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), construed Ohio Penal Code Section 2953.21 et seq. which provides for post conviction relief. Ohio Revised Code Section 2953.21 provides in part:

"A prisoner in custody under sentence and claiming a right to be released on the ground that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a verified petition at any time in the court which imposed sentence, stating the grounds relied upon, and asking the court to vacate or set aside the sentence. * * *"

In construing the statute, the Supreme Court of Ohio stated:

"A prisoner is entitled to relief under the statute only if the court can find that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States.

"Within the meaning of the statute, a judgment of conviction is void if rendered by a court having either no jurisdiction over the person of the defendant or no jurisdiction of the subject matter, i. e., jurisdiction to try the defendant for the crime for which he was convicted. Conversely, where a judgment of conviction is rendered by a court having jurisdiction over the person of the defendant and jurisdiction of the subject matter, such judgment is not void, and the cause of action merged therein becomes res judicata as between the state and the defendant. Perry v. Maxwell, Warden (1963), 175 Ohio St. 369, 195 N.E.2d 103; Mills v. Maxwell, Warden (1963), 174 Ohio St. 523, 190 N.E.2d 264; State v. Wozniak (1961), 172 Ohio St. 517, 522, 178 N.E.2d 800.

"The word `voidable\' has caused some confusion. Thus, an erroneous judgment that is not void could be considered as in effect `voidable,\' so long as it

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