Cox v. Maxwell, 16662.

• Decision Date: 07 October 1966
• Docket Number: No. 16662.,16662.
• Citation: 366 F.2d 765
• Parties: Herbert Lee COX, Petitioner-Appellant, v. E. L. MAXWELL, Warden, Ohio Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

366 F.2d 765 (1966)

Herbert Lee COX, Petitioner-Appellant, v. E. L. MAXWELL, Warden, Ohio Penitentiary, Respondent-Appellee.

No. 16662.

United States Court of Appeals Sixth Circuit.

October 7, 1966.

Herbert Lee Cox in pro. per.

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

Before PHILLIPS and EDWARDS, Circuit Judges, and CECIL, Senior Circuit Judge.

PER CURIAM.

This is an appeal from an order of the United States District Court for the Southern District of Ohio denying the petition of Herbert Lee Cox, the petitioner-appellant herein, for a writ of habeas corpus. The petitioner is now confined in the Ohio State Penitentiary and he claims that his sentence has expired.

It is claimed on behalf of the respondent-appellee that the district judge dismissed the petition for the reason that the petitioner had not exhausted his state remedies either by habeas corpus or delayed appeal. Neither of these claims is correct. The petitioner was denied a writ of habeas corpus by the Supreme Court of Ohio. Cox v. Maxwell, Warden, 1 Ohio St.2d 111, 205 N.E.2d 17. The petitioner has never denied the validity of his conviction and sentence. There would be no purpose in taking a delayed appeal. The petitioner claims that he is being illegally restrained by reason of expiration of his sentence. Habeas corpus is his proper remedy. An examination of the record discloses that the district judge dismissed the petition on the merits of petitioner's claim and not because he had failed to exhaust his state remedies.

The petitioner alleges in his petition that he is confined at the Ohio penitentiary under the custody of E. L. Maxwell, warden, by orders issued by the Ohio Pardon and Parole Commission; that he was sentenced to the Mansfield Reformatory upon a plea of guilty to a charge of burglary by the Common Pleas Court of Hamilton County, Ohio, for a term of one to fifteen years; that he began to serve his sentence on February 5, 1948, and that in the interim between then and now four paroles were granted and revoked.

Section 2965.21 Ohio Revised Code provides, in part,

"A * * * prisoner who has been paroled, who in the judgment of the pardon and parole commission has violated the conditions of his * * * parole shall be declared a violator. In the case of * * * a * * * prisoner, or other person who has been declared a violator, the time from the date of * * * the declared violation of his * * * parole to the date of

...