State ex rel. Womack v. Sloan, 2017–0383

• Decision Date: 29 November 2017
• Docket Number: No. 2017–0383,2017–0383
• Parties: The STATE EX REL. WOMACK, Appellant, v. SLOAN, Warden, Appellee.
• Court: Ohio Supreme Court

152 Ohio St.3d 32

92 N.E.3d 836

2017 Ohio 8708

The STATE EX REL. WOMACK, Appellant,

v.SLOAN, Warden, Appellee.

No. 2017–0383

Supreme Court of Ohio.

Submitted August 29, 2017

Decided November 29, 2017

Joe Richard Womack, pro se.

Michael DeWine, Attorney General, and Jonathan R. Khouri, Assistant Attorney General, for appellee.

Per Curiam.

{¶ 1} We affirm the judgment of the Eleventh District Court of Appeals dismissing the petition of appellant, Joe Richard Womack, for a writ of habeas corpus.

{¶ 2} Womack pleaded guilty to aggravated burglary and aggravated robbery in 1985, grand theft in 1995, and aggravated robbery in 2004. He was sentenced to a prison term for each offense.

{¶ 3} In April 2014, the Ohio Adult Parole Authority ("APA") granted Womack parole on the condition of "zero tolerance for any positive drug test." The next month, he tested positive for buprenorphine.¹ According to Womack, he requested a confirmation test but it was not administered because he was unable to pay the $35 fee. In June 2014, Womack was reincarcerated after the APA held a revocation hearing and revoked his parole.

{¶ 4} In 2015, Womack filed a petition for a writ of habeas corpus in the Eleventh District Court of Appeals against appellee, Brigham Sloan, the warden of Lake Erie Correctional Institution, claiming violations of his due-process, equal-protection, and confrontation rights. According to Womack, the APA was required to confirm his positive drug test and could not revoke his parole solely because he could not pay the fee for a confirmation test. He sought two forms of relief: (1) a new parole-revocation hearing, in which the APA is barred from using the unconfirmed test results, and (2) an order directing the APA to change its drug-testing policy for indigent parolees who cannot afford to pay for a confirmation test.

{¶ 5} The court of appeals granted the warden's motion to dismiss, explaining that habeas corpus is not available to grant the relief Womack seeks. The court also sua sponte dismissed Womack's amended petition. Womack now appeals.

{¶ 6} As Womack notes, the revocation of parole implicates constitutional liberty interests and triggers certain due-process protections. See Scarberry v. Turner , 139 Ohio St.3d 111, 2014-Ohio-1587, 9 N.E.3d 1022, ¶ 13, citing Morrissey v. Brewer , 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). But "[t]he remedy for an alleged Morrissey due-process violation is a new hearing, not immediate release from confinement." Scarberry at ¶ 13. As such, in most cases, "habeas is the wrong remedy to challenge alleged due-process violations at a parole hearing."

Id. at ¶ 14 (also acknowledging that habeas may be a proper remedy "in extreme circumstances involving unreasonable delay").

{¶ 7} Womack has not established that this is one of the "extraordinary cases" in which habeas corpus will lie to challenge the APA's parole-revocation decision. State ex rel. Jackson v. McFaul , 73 Ohio St.3d 185, 187, 652 N.E.2d 746 (1995). "[H]abeas corpus lies only if the petitioner is entitled to immediate release from confinement," Scarberry at ¶ 14, something Womack does not assert or request. Instead, his prayer for relief asks only for a new parole-revocation hearing and an order directing the APA to adopt a new policy for indigent parolees seeking confirmatory drug tests. Thus, habeas is not the proper remedy here.

{¶ 8} Womack's second argument—that the APA violated his equal-protection rights when it imprisoned him solely because he could not afford to pay the fee for a confirmatory drug test—similarly fails. In his brief, Womack cites United States Supreme Court decisions finding Fourteenth Amendment violations when defendants were discriminated against based solely on their inability to pay fees or fines. See, e.g. , Bearden v. Georgia , 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) ; Tate v. Short , 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971) ; Griffin v....