Justice v. State Bd. of Pardons and Paroles, 29817

• Decision Date: 24 June 1975
• Docket Number: No. 29817,29817
• Citation: 218 S.E.2d 45,234 Ga. 749
• Parties: George JUSTICE v. STATE BOARD OF PARDONS AND PAROLES.
• Court: Georgia Supreme Court

Page 45

218 S.E.2d 45

234 Ga. 749

George JUSTICE v. STATE BOARD OF PARDONS AND PAROLES.

No. 29817.

Supreme Court of Georgia.

June 24, 1975.

Rehearing Denied July 10, 1975.

Thomas M. West, Atlanta, for appellant.

Arthur K. Bolton, Atty. Gen., G. Stephen Parker, Asst. Atty. Gen., Atlanta, for appellee.

HILL, Justice.

This suit filed in Fulton Superior Court was labeled as a petition for writ of habeas corpus and named R. C. Wright, Warden, Fulton County Correctional Institution, as respondent. The petition alleged that petitioner is being held by respondent under a 1964 life sentence for murder, that he was granted parole in 1971 but that it was revoked after nine months, that he was denied parole in 1973 and 1974 due to his alcohol problem and his alleged lack of participation in institutional self-improvement programs among other reasons, that he is thereby being denied due process of law and subjected to cruel and unusual punishment, and that his prior criminal record cannot be considered as grounds for denial of parole due to the existence of such record when he was formerly granted parole.

The State Board of Pardons and Paroles was ordered to answer the complaint.

When petitioner noticed the deposition of the Chairman of the Board of Pardons and Paroles, a motion for protective order was filed on his behalf by the Attorney General's office, along with motions to dismiss the petition for failure to state a claim for relief and to dismiss the Parole Board as an improper party.

In a well reasoned opinion and order, the court below denied the relief sought by petitioner, treating his petition first as seeking habeas corpus relief and second as seeking a writ of mandamus. Petitioner enumerates as error the trial court's ruling that habeas corpus would not lie, the trial court's treating the petition as seeking mandamus and dismissing it without hearing while petitioner was seeking to support his allegations by evidence through discovery, and the trial court's finding that petitioner's constitutional rights have not been violated by the Parole Board. In substance, petitioner complains that the trial court erred in granting the motion to dismiss.

1. The writ of habeas corpus is available to a person (i) whose liberty is being restrained by virtue of a sentence imposed upon him by a court of record and (ii) who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his constitutional or legal rights. See Code Ann. § 50-127(1), Ga.L.1967, pp. 835, 836, as now amended by Ga.L.1975, pp. 1143-1145 (SB 205).

Petitioner does not assert that in the proceedings which resulted in his conviction for murder and sentence to life imprisonment there was any denial of his constitutional or legal rights. Neither does he assert that his rights were violated when his 1971 parole was revoked. As a petition for habeas corpus, the complaint failed to state a claim for habeas corpus relief. Davis v. Caldwell, 229 Ga. 605, 193 S.E.2d 617; Whippler v. Caldwell, 231 Ga. 41, 200 S.E.2d 144.

The case of Duncan v. Ricketts, 232 Ga. 89, 205 S.E.2d 274, relied on by petitioner, involved revocation of parole as opposed to the denial of a parole. Duncan was being restrained by the warden by virtue of a sentence of a court of record and revocation of his parole. He sought to challenge the proceeding (revocation of parole) which resulted in his being restrained, on the ground that he had been denied his constitutional rights in that proceeding. Duncan v. Ricketts does not hold that a prisoner can use habeas corpus to complain of denial of the grant of parole.

The court below did not err in denying habeas corpus relief to petiti...