Opinion
No. 38748
Decided June 24, 1964.
Habeas corpus — Not substitute for appeal — Not available where petitioner subject to detention under other convictions.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. In 1958, petitioner, Charles B. Geroski, was indicted for and pleaded guilty to grand larceny and unlawful possession of a hypodermic needle for the purpose of admininstering habit-forming drugs. He was sentenced to the Ohio State Reformatory for a term of one to seven years. In August 1961, while on parole, he was indicted for unlawful possession of a narcotic drug, namely paregoric, which contained more than one-half grain of morphine. Petitioner waived a jury and, while represented by counsel, was tried to and found guilty by the court. He was sentenced to the Ohio Penitentiary under this conviction
Mr. Charles B. Geroski, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
Petitioner in the present action in habeas corpus is attacking only his 1961 conviction. Habeas corpus is not a substitute for appeal and lies only where petitioner would be entitled to immediate release if it is found his claim is well taken; it does not lie if petitioner is subject to detention because of other convictions. Page v. Green, Supt., 174 Ohio St. 178; and McNally v. Hill, 293 U.S. 131. In the present case, petitioner is still subject to detention under his 1958 convictions, the validity of which he does not attack, and thus is not entitled to an immediate release, so that habeas corpus does not lie. Any error which petitioner desires to urge in relation to his 1961 conviction must be raised by appeal. Page v. Green, supra; and McNally v. Hill, supra.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.