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 |
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.
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:
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:
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