[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Marsh v. Tibbals, Slip Opinion No. 2017-Ohio-829.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                           SLIP OPINION NO. 2017-OHIO-829
     THE STATE EX REL. MARSH, APPELLANT, v. TIBBALS, WARDEN, ET AL.,
                                         APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
         may be cited as State ex rel. Marsh v. Tibbals, Slip Opinion No.
                                      2017-Ohio-829.]
Habeas corpus and mandamus—Appellant failed to show that he is entitled to
        immediate release or that he has clear legal right to new parole-revocation
        hearing—Court of appeals’ grant of summary judgment in favor of warden
        and Adult Parole Authority affirmed.
    (No. 2015-1841—Submitted January 10, 2017—Decided March 9, 2017.)
               APPEAL from the Court of Appeals for Madison County,
                                   No. CA2015-04-013.
                                    ________________
        Per Curiam.
        {¶ 1} We affirm the Twelfth District Court of Appeals’ denial of the petition
for a writ of habeas corpus or, in the alternative, a writ of mandamus filed by
                              SUPREME COURT OF OHIO




appellant, Stacey L. Marsh. That court correctly held that Marsh is not entitled to
immediate release and thus is ineligible for habeas corpus relief. The court of
appeals also correctly determined that Marsh is not entitled to a writ of mandamus
to compel the Adult Parole Authority (“APA”) to grant him a new parole-
revocation hearing with court-appointed counsel.
                           Facts and Procedural History
          {¶ 2} Marsh is an inmate at the London Correctional Institution, where he
has been serving the remainder of an indeterminate sentence since the APA revoked
his parole in 2014.
                       State and Federal Criminal Convictions
          {¶ 3} In September 1985, the Madison County Court of Common Pleas
sentenced Marsh to concurrent prison terms of 18 months for various fourth-degree
felonies. In October 1985, the Lorain County Court of Common Pleas convicted
Marsh of one count of receiving stolen property and sentenced him to one year in
prison.
          {¶ 4} In December 1985, Marsh pleaded guilty to robbery, forgery, and
receiving stolen property in three separate Franklin County cases and was sentenced
to an aggregate prison term of 4 to 15 years. Marsh was granted parole from these
sentences in April 1989. But in April 1991, he was arrested in West Virginia and
charged with multiple federal drug and weapons offenses. Marsh was convicted of
all counts, and in February 1992, the United States District Court for the Southern
District of West Virginia ordered him to serve a 324- to 405-month sentence in
federal prison.
          {¶ 5} In June 1992, the APA declared Marsh a parole violator effective
April 2, 1991, as a result of his federal convictions. The APA also issued a warrant
and detainer for his return to its custody upon the completion of his federal
sentence.




                                          2
                               January Term, 2017




       {¶ 6} Beginning in June 2001 and continuing until November 2011, Marsh
sent letters to various employees of the APA requesting that they lift the detainer,
“recognize the judgment in [the Franklin County robbery] case * * * as being
satisfied and complete” based on the time he was incarcerated for his federal
convictions, and hold a parole-revocation hearing via videoconference.
       {¶ 7} After completing his federal sentence, Marsh was returned to the
custody of the APA on August 15, 2014. The APA provided Marsh with written
notification of a “release violation hearing” to be held on September 15, 2014. On
the form, which Marsh signed and dated, he “[a]dmit[ted] with [m]itigation” all the
alleged parole violations. He also checked boxes indicating that he did not “request
the presence of any witnesses/documents” or “representation or counsel” at the
September hearing.
       {¶ 8} At the hearing, Marsh admitted that his federal convictions were a
violation of his release conditions and presented mitigating evidence. However,
after considering the record as a whole, including Marsh’s admissions and
mitigation, the officer revoked his parole and recommended that the APA impose
a 48-month sanction. The APA agreed with the recommendation and imposed a
48-month sanction. Marsh will become eligible for parole consideration again in
August 2018. Marsh’s request for reconsideration of the APA’s decision was
denied in December 2014.
                          State Habeas Corpus Petition
       {¶ 9} On April 2, 2015, Marsh filed a petition for a writ of habeas corpus
or, in the alternative, a writ of mandamus against appellees, Warden Terry Tibbals
and the APA. He requested an order compelling Tibbals to immediately release
him from prison “under the same terms and conditions of his original parole.”
Marsh also requested, in the alternative, an order compelling the APA to credit his
time served from 2001 to 2011. Finally, he sought an order “compelling the [APA]




                                         3
                              SUPREME COURT OF OHIO




to grant [him] a new mitigation/revocation hearing with the appointment of
counsel.”
       {¶ 10} The court of appeals granted summary judgment in favor of Tibbals
and the APA and denied Marsh’s requests for relief.
                                       Analysis
                            Summary-Judgment Standard
       {¶ 11} A court properly grants summary judgment “when an examination
of all relevant materials filed in the action reveals that ‘there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of
law.’ ” Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954,
¶ 12, quoting Civ.R. 56(C). We review the court of appeals’ decision granting
summary judgment to Tibbals and the APA de novo. State ex rel. Anderson v.
Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, ¶ 9, citing
Troyer v. Janis, 132 Ohio St.3d 229, 2012-Ohio-2406, 971 N.E.2d 862, ¶ 6.
                                   Habeas Corpus
       {¶ 12} An action in “habeas corpus will lie in certain extraordinary
circumstances where there is an unlawful restraint of a person’s liberty,
notwithstanding the fact that only nonjurisdictional issues are involved, but only
where there is no adequate legal remedy, e.g., appeal or postconviction relief.”
State ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 186, 652 N.E.2d 746 (1995).
However, even when the petitioner has no adequate legal remedy, habeas corpus
relief generally is appropriate only when “the petitioner’s maximum sentence has
expired and he is being held unlawfully.” Heddleston v. Mack, 84 Ohio St.3d 213,
214, 702 N.E.2d 1198 (1998).
       {¶ 13} “The revocation of parole implicates a liberty interest which cannot
be denied without certain procedural protections.” Jackson at 186. In order to
safeguard the liberty interests implicated by parole, this court has determined that
due process requires that parolees have “certain rights, including the right to a




                                           4
                                 January Term, 2017




[revocation] hearing within a reasonable time following arrest.” Id. However, the
“operative event triggering any loss of liberty attendant upon parole revocation” is
execution of and custody under the warrant issued upon a parole violation. Moody
v. Daggett, 429 U.S. 78, 87, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976). Accord State ex
rel. Taylor v. Ohio Adult Parole Auth., 66 Ohio St.3d 121, 125, 609 N.E.2d 546
(1993) (“[U]nder federal due process principles, no liberty interest attaches until a
parolee is taken into custody pursuant to the detainer. If a loss of liberty is
attributable to detention for new crimes, the parole authority has no constitutional
duty to hold an immediate parole revocation hearing, regardless of his request
therefor”); State ex rel. Brantley v. Ghee, 83 Ohio St.3d 521, 522, 700 N.E.2d 1258
(1998) (“The APA has no legal duty to hold a final parole revocation hearing for
Brantley during the time he is incarcerated on new criminal charges”).
          {¶ 14} First, Marsh argues that the APA was obligated to hold a revocation
hearing as soon as the federal prison agreed to make him available for the hearing
via videoconferencing technology. Marsh also urges this court to “declare that
videoconferencing was equivalent to live and in person hearings regardless of
geographical location.”
          {¶ 15} But irrespective of Marsh’s request that the APA hold a revocation
hearing by videoconference, the APA was under no duty to do so during Marsh’s
federal incarceration. Brantley at 522. The APA’s duty to hold a revocation
hearing did not arise until Marsh completed his federal sentence and the federal
authorities transferred him into state custody in August 2014. Moody at 87; Taylor
at 125.
          {¶ 16} Contrary to Marsh’s argument, the availability of videoconferencing
technology did not trigger the APA’s duty to hold Marsh’s revocation hearing.
Because Marsh was serving a sentence for federal convictions while on parole from
his Ohio sentence, he was not entitled to a revocation hearing until the APA took
custody of him after he completed his federal sentence. “Neither due process of




                                          5
                              SUPREME COURT OF OHIO




law nor R.C. 2967.15’s or former Ohio Adm.Code 5120:1-1-19(A)’s ‘reasonable
time’ requirement compels a final revocation parole hearing while an alleged parole
violator is imprisoned pending prosecution for, or after conviction of, another
crime.” Taylor, 66 Ohio St.3d at 128, 609 N.E.2d 546.
        {¶ 17} Marsh contends that the Tenth District Court of Appeals’ decision in
Wilkins v. Wilkinson, 157 Ohio App.3d 209, 2004-Ohio-2530, 809 N.E.2d 1206
(10th   Dist.),   conferred   upon    him     a   “reasonable    expectation   to   a
revocation/mitigation hearing [via videoconference] when he asserted his right to
it.” However, Wilkins did not confer any rights upon Ohio parolees; the court
determined only that “the use of videoconferencing technology [by the APA] for
witness testimony during the parole-revocation hearing satisfied the Confrontation
Clause under the[ ] circumstances” of that case. Id. at ¶ 1.
        {¶ 18} Second, Marsh contends that had the APA granted his request to hold
his revocation hearing sooner via videoconference, it would have been required to
give him credit for time served against any Ohio sentence resulting from the parole
violations.
        {¶ 19} However, under R.C. 2967.15(D), “[a] person who is a parolee
* * * and who has violated a term or condition of the person’s * * * parole
* * * shall be declared to be a violator if the person is committed to a correctional
institution outside the state to serve a sentence imposed upon the person by a federal
court.” R.C. 2967.15(C)(1) provides that “[t]he time between the date on which a
person who is a parolee or other releasee is declared to be a violator * * * and the
date on which that person is returned to custody in this state under the immediate
control of the adult parole authority shall not be counted as time served under the
sentence imposed on that person.” (Emphasis added.)
        {¶ 20} We have repeatedly rejected the same argument Marsh raises with
respect to having his federal prison time count toward the 48-month sentence he
received for violating parole. See State ex rel. Gillen v. Ohio Adult Parole Auth.,




                                          6
                                January Term, 2017




72 Ohio St.3d 381, 381-382, 650 N.E.2d 454 (1995); Hignite v. Cardwell, 22 Ohio
St.2d 146, 258 N.E.2d 443 (1970); Armstrong v. Haskins, 176 Ohio St. 422, 200
N.E.2d 311 (1964). Marsh is incorrect in asserting that his federal sentence would
have been credited toward his state sentence for the parole violation had the APA
granted him a revocation hearing by videoconference when he requested it.
       {¶ 21} Marsh also claims that the court of appeals failed to address whether
the September 2014 parole-revocation hearing was unreasonably delayed under the
dictates of the consent decree established in Kellogg v. Shoemaker, 927 F.Supp.
244 (S.D.Ohio 1996). Under the Kellogg consent decree, inmates included in the
class of persons to which Kellogg applied were entitled to a hearing “to determine
whether revocation of parole is appropriate,” “[t]he right to advance notice of the
class member’s rights at the hearing,” and, “[w]here the class member alleges that
there are substantial reasons which justified or mitigated the violation and make
revocation inappropriate, and the reasons are complex or otherwise difficult for the
class member to develop or present, the right to be represented by the Ohio Public
Defender or private counsel (at the member’s expense).” Id. at 247 (paragraphs
V(a)(1), (3), and (6) of consent decree).
       {¶ 22} Even assuming that Marsh is a member of the Kellogg class, his
revocation complied with the consent decree because Marsh had an opportunity to
present mitigating evidence and was given the opportunity to request representation
by counsel.
       {¶ 23} Marsh received a timely revocation hearing one month after being
released from federal custody to the custody of the APA. Moreover, the APA
revoked Marsh’s parole after he admitted to the parole violations and after
considering his mitigation, and imposed a 48-month sanction, making him not
eligible for parole consideration again until 2018. Accordingly, Marsh has not
served his maximum sentence and has not shown that he is being held unlawfully.
The court of appeals correctly denied Marsh’s request for a writ of habeas corpus.




                                            7
                             SUPREME COURT OF OHIO




                                    Mandamus
       {¶ 24} A relator seeking a writ of mandamus must establish (1) a clear legal
right to the requested relief, (2) a clear legal duty on the part of the respondent
official or governmental unit to provide it, and (3) the lack of an adequate remedy
in the ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d
55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. The relator must prove entitlement to the
writ by clear and convincing evidence. Id. at ¶ 13.
       {¶ 25} Marsh seeks an order compelling the APA to “credit [him] for time
he was available for return during the years 2001-2011.” However, as discussed
above, R.C. 2967.15(C)(1) specifically speaks to that argument—and repudiates it.
Accordingly, the court of appeals correctly determined that Marsh failed to
demonstrate a clear legal duty on the part of the APA or a clear legal right on his
part to have any of his federal time credited toward his revocation time.
       {¶ 26} Marsh argues that the court of appeals erred when it held that he did
not have a clear legal right to a new parole-revocation hearing with court-appointed
counsel. He contends that he was misinformed about his eligibility to have counsel
appointed to represent him and was deceived into declining representation.
       {¶ 27} We have held that “counsel is not automatically required * * * for
mitigation hearings.” State ex rel. Stamper v. Ohio Adult Parole Auth., 62 Ohio
St.3d 85, 87, 578 N.E.2d 461 (1991). Under Gagnon v. Scarpelli, 411 U.S. 778,
790, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), counsel is constitutionally required
when the parolee requests counsel “based on a timely and colorable claim * * *
that, even if the violation is a matter of public record or is uncontested, there are
substantial reasons which justified or mitigated the violation and make revocation
inappropriate, and that the reasons are complex or otherwise difficult to develop or
present.”
       {¶ 28} The evidence submitted to the court of appeals in support of granting
summary judgment demonstrates that Marsh’s parole-revocation hearing was not




                                         8
                                 January Term, 2017




one for which counsel was necessary. Marsh was informed of his right to request
that any witnesses or documentary evidence be produced or that he be represented
by counsel at his revocation hearing, and he expressly declined to make either
request. He admitted to all the charged parole violations and submitted mitigating
evidence during the hearing. Marsh’s mitigation consisted of his personal history
and claims that his criminal conduct was due to childhood trauma, that his federal
sentence was disproportionate to his federal crimes, and that he was “no longer the
same person” that he was when he committed his original crimes in Ohio decades
earlier. The APA considered Marsh’s mitigating evidence before revoking his
parole. Marsh simply did not make a “ ‘colorable claim’ of substantial, complex,
or difficult mitigation factors requiring counsel.” Stamper at 88, quoting Gagnon
at 790.
          {¶ 29} Marsh has failed to prove his entitlement to a writ of mandamus by
clear and convincing evidence. The court of appeals correctly granted summary
judgment in favor of Tibbals and the APA.
                                                               Judgment affirmed.
          O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,
and DEWINE, JJ., concur.
                                _________________
          Stacey L. Marsh, pro se.
          Michael DeWine, Attorney General, and M. Scott Criss, Assistant Attorney
General, for appellees.
                                _________________




                                          9
